Saunders Civilbuild Pty Ltd v SafeWork New South Wales - [2023] NSWCCA 261 - NSWCCA 2023 case summary — Zoe

NSWNSWCCA

Saunders Civilbuild Pty Ltd v SafeWork New South Wales

[2023] NSWCCA 261

Court of Criminal Appeal (NSW)|2023-07-26|Before: Beech-Jones CJ, Walton J, McNaughton J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-07-26

Before

Beech-Jones CJ, Walton J, McNaughton J

Catchwords

[1928] HCA 10 Allianz Australia Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568
[2005] HCA 26 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92
[2012] HCA 14 Bennett v Minister of Community Welfare (1992) 176 CLR 408
[1992] HCA 27 Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338

Source

Original judgment source is linked above.

Catchwords

[1928] HCA 10 Allianz Australia Ltd v GSF Australia Pty Ltd (2005) 221 CLR 568[2005] HCA 26 Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92[2012] HCA 14 Bennett v Minister of Community Welfare (1992) 176 CLR 408[1992] HCA 27 Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338[2016] NSWCCA 37 Burns v The Queen (2012) 246 CLR 334[2012] HCA 35 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610[2000] NSWIRComm 71 City of Adelaide v Australasian Performing Right Association Ltd (1928) 40 CLR 481[1928] HCA 10 Cullen v State Rail Authority (NSW) (1989) 31 IR 207[1989] AR (NSW) 588 Davis v Langdon [1911] 11 SR (NSW) 149 Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408[2016] VSCA 55 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313[1952] HCA 72 Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361(1997) 98 A Crim R 481 Fox v Percy (2003) 214 CLR 118Badior v Morrison (2017) 96 NSWLR 658[2017] NSWCCA 326 Inspector Christensen v Abigroup Contractors Pty Ltd (2013) 238 IR 360

Judgment (29 paragraphs)

[1]

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313; [1952] HCA 72 Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361; (1997) 98 A Crim R 481 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Genner Constructions Pty Ltd v Work Cover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57 Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 Hamilton v State of New South Wales [2020] NSWSC 700 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 Hunt v Barlow [2000] NSWSC 324 Hunter Quarries Pty Ltd v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 Inspector Christensen v Abigroup Contractors Pty Ltd (2013) 238 IR 360; [2013] NSWIRComm 111 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95 Leyshon v Western Australia [2007] WASCA 223 Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297 Nash v Silvercity Drilling NSW Pty Ltd; Attorney-General for NSW v Silvercity Drilling (NSW) Pty Ltd [2017] NSWCCA 96 New South Wales v O'Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198 Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201 Nguyen v R (2012) 267 FLR 344; [2012] ACTCA 24 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171; [1993] 3 All ER 853 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2006] VSCA 181 R v Jasper [2003] NSWSC 285 R v Leonie [1999] NSWCCA 319 R v Mulcahy [2010] ACTSC 98 R v VHP (Unreported, NSWCCA, 7 July 1997 Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163 Shannon v Camalco Aluminium Ltd (1986) 19 IR 358 Simpson Design and Associates Pty Ltd v Industrial Court of NSW (2011) 213 A Crim R 340; [2011] NSWCA 316 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; [1957] HCA 34 State Rail Authority (NSW) v Dawson (1990) 37 IR 110 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94; [2010] NSWCA 252 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 Whelan v The Queen (2012) 228 A Crim R 1; [2012] NSWCCA 147 Work Cover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIR Comm 316 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 WorkCover Authority (NSW) (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447; [2001] NSWIRComm 319 WorkCover Authority (NSW) v ATCO Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority (NSW) v Police Service (NSW) (No 2) (2001) 104 IR 268; [2001] NSWIRComm 90 WorkCover Authority of (NSW) v Kirk Group Holdings Pty Ltd (2004) 135 IR 166; [2004] NSWIRComm 207 Texts Cited: SafeWork NSW, Managing The Risk Of Falls At Workplaces, Code Of Practice (April 2016) Category: Principal judgment Parties: Saunders Civilbuild Pty Ltd (Appellant) SafeWork NSW (Respondent) Representation: Counsel: M Cunneen SC with P Barry (Appellant) J Agius SC with M Cahill (Respondent)

[2]

Solicitors: Moray & Agnew Lawyers (Appellant) SafeWork NSW (Respondent) File Number(s): 2020/32219 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: [2021] NSWDC 605 Date of Decision: 10 November 2021 Before: Scotting DCJ File Number(s): 2020/32219

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 November 2021, Saunders Civilbuild Pty Ltd ("the appellant") was found to have breached its duty of care under s 19 of the Workplace Health and Safety Act 2011 (NSW) ("WHS Act") and as a result was convicted of an offence under s 32 of the WHS Act, namely, a failure to comply with a health and safety duty that exposed individuals to a risk of death or serious injury or illness. On 18 May 2022, the appellant was ordered to pay a fine of $375,000 and to publish two Adverse Publicity Notices pursuant to s 236 of the WHS Act. On 16 February 2018, the late Mr Edwards drove a heavy combination vehicle to transport an excavator and bundles of timber piles to a site. He was assisted by two employees of the appellant, Mr Williams, a labourer, and Mr Brown, a supervisor. Mr Brown and Mr Edwards had worked closely together for around 20 years and Mr Brown had frequently assisted Mr Edwards to load and unload trucks. While attempting to unload the first bundle of timber, Mr Edwards climbed on top of the pile to readjust the attachment to the excavator and then gave Mr Brown a nod to lift the pile. As the pile was lifted, Mr Edwards fell backwards from the truck and onto the road where he suffered a blunt force head trauma and, notwithstanding hospital treatment, died six days later. The appellant identified the risk of a fall from height by its policy to issue a verbal direction to its employers that they were "not allowed to climb onto the back of trucks or trailers" and the adoption of the engineering control of pre-slinging loads, such that piles are accessible from the ground. The trial judge did not find that a verbal direction was given by Mr Brown to Mr Edwards on 15 February 2018 or at any other time. Nor were such verbal directions systematically conveyed to contract drivers prior to the incident. After the incident, the appellant, inter alia, inserted additional written safety instructions to its Safe Work Method Statements to the effect that the loading and unloading of trucks should be carried out from the ground and, if work must be carried out from a height appropriate fall, protection must be in place. The appellant also incorporated a reference to loads being slung from the ground. The appellant sought to appeal its conviction on the following grounds: (1) that the trial judge erred in law and fact in finding that the evidence did establish the charge had been proved beyond a reasonable doubt; (2) that the trial judge erred in not applying his Honour's own reasoning from his Honour's interlocutory decision, namely, that the conjunction 'and/or' between the words 'loading' and 'unloading' in the charge particulars should be read as 'and', to the trial decision where his Honour interpreted the conjunction 'and/or' as 'and/or' and 'or' on many occasions; and (3) that the trial judge erred in law and fact in finding that the word 'permitted' in par 16 of the charge particulars was not an essential fact that must be established by the prosecution. The Court held (Beech-Jones CJ at CL, Walton J and McNaughton J), dismissing the appeal and allowing the parties to apply for directions in relation to any proposed appeal against sentence: In respect of Ground 1 1. 1. Section 19 of the WHS Act is contravened where there has been a failure, on the part of a person conducting a business or undertaking to take particular measures to prevent an identifiable risk eventuating. There was requisite evidence for the primary judge to establish that the appellant failed to ensure, as far as reasonably practicable, the health and safety of workers: Walton J at [155] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]). Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Bulga Underground Operations Pty Ltd v Nash (2016) NSWLR 338; [2016] NSWCCA 37, applied. 1. 2. When the manner in which a defendant is alleged to have committed an offence is by omission, the omission needs to be proved to have been something the defendant had a duty to do: Walton J at [164]-[165] (McNaughton J agreeing at [399]). Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43, applied. 1. 3. The relevant question is not, did the duty holder envisage a particular danger, but rather, should it have: Walton J at [167] (McNaughton J agreeing at [399]). WorkCover Authority (NSW) v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 1. 4. The employment of the concept of a defendant having to be proactive in ensuring safety in relation to liability may distract from the real questions in relation to proof of a pleaded measure to determine a breach of duty. Nonetheless the evaluation of whether an omission amounts to a breach by a duty holder must be made in the context of the strident obligations in duty holders under the WHS Act to ensure safety: Walton J at [168] (McNaughton J agreeing at [399]). 2. 5. The trial judge was not in error in accepting Mr Brown as a witness of truth but rejecting part of the evidence of Mr Brown. The acceptance or rejection of evidence of a particular witness is a matter for the trial judge, particularly where the evidence is illogical, inherently unreliable or contradicted by a credible body of substantial evidence. Even where the witness is not challenged in cross-examination: Walton J at [240]-[247] (McNaughton J agreeing at [399]). Landmark Roofing Pty Ltd v Safe Work NSW [2021] NSWCCA 95, applied. The trial judge enjoyed a distinct advantage compared to this Court in assessing the credibility of witnesses and there is no basis established to interfere with those findings: Beech-Jones CJ at CL at [7] (Walton J agreeing at [243] and McNaughton J agreeing at [399]). 1. 6. There was no systematic conveyance of the verbal direction or engineering control to contract drivers prior to the incident. Mr Edwards was not given a verbal direction prior to or on 15 February 2018. This must mean that the appellant had not taken an available measure to minimise the risk of fall. There was an omission by the appellant to adopt the procedures which otherwise underpinned its safety systems by written directions: Walton J at [168], [224], [226], [228] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]). 2. 7. In circumstances when the appellant had accepted the importance of written safety procedure by its Integrated Management System or otherwise by its system of work, it was incumbent upon the appellant to evaluate whether the management of the known risk would be enhanced by written directions, appropriate training, or supervision: Walton J at [168] (McNaughton J agreeing at [399]). 3. 8. A documented practice recording the necessity to convey verbal directions accompanied by workers acknowledging in writing their receipt and understanding of such a direction was necessary. This conclusion is simply a matter of common sense and the trial judge did not need any further evidence to reach it: [11] Beech-Jones CJ at CL (McNaughton J agreeing at [399]). 4. 9. The appellant sought to control the work of sub-contractors. This was recognised by the primary judge. The appellant's supervisor had significant obligations under those arrangements to ensure the work health & safety of sub-contractors in accordance with the written instructions or policies: Walton J at [262] (Beech-Jones CJ at CL agreeing at [11] regarding 17(a)(i)-(ii) and McNaughton J agreeing at [399]). Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14, distinguished. 1. 10. The evidence discloses that written safe work procedures did minimise risk as compared to the counterpart verbal direction procedure adopted by the appellant. Those written safety procedures were required to be read, discussed, and acknowledged by workers in writing: Walton J at [265]-[266] (McNaughton J agreeing at [399]). 2. 11. Changes made by the duty holder post-incident may provide evidence that there existed, at the time of the incident, practical measures which would have reduced or eliminated the subject risk if adopted: Walton J at [268] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]). Davis v Langdon [1911] 11 SR (NSW) 149; Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR, applied. 1. 12. The method of work, as one component of a safe system of work, is a foundational element on which other matters such as training, supervision and the selection of appropriate plant and equipment may often depend, for their effective operation: Walton J at [332]. Work Cover Authority (NSW) v Fletcher Constructions Australia Ltd (2002) 123 IR 121; [2002] NSWIR Comm 316; Genner Constructions Pty Ltd v Work Cover Authority (NSW) (Inspector Guillarte) (2001) 110 IR 57, applied. 1. 13. The appellant failed to provide adequate training in a safe work method or procedure and adequate supervision of its workers: Walton J at [297]-[316], [333], [332] (Beech-Jones CJ at CL agreeing at [11] and [17] and McNaughton J agreeing at [399]). 2. 14. Written instructions often play an important role in ensuring that duty holders meet their duties under the WHS Act, provided the written safety procedures actually address risks rather than simply constitute a global policy statement as to work health and safety. A duty holder may be required to supplement written procedures with verbal directions and reinforcements such as toolbox meetings, training, and direct management by supervisors., Nothing in this judgment should be taken as indicating the verbal directions issued by the appellant in this case were sufficient to satisfy the primary duty under s 19(1) of the WHS Act: Walton J at [274] (Beech-Jones CJ at CL agreeing at [11] and McNaughton J agreeing at [399]). In respect of Ground 2 1. 15. The trial judge consistently applied his Honour's own reasoning from the interlocutory decision that the conjugation 'and/or' in the charge particulars should be interpreted as 'and'. The trial judge's approach to the risk of fall and analysis of the evidence was referable to both the loading and unloading of trucks: Walton J at [355] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]). In respect of Ground 3 1. 16. The word 'permitted' in the charge particulars was not an essential fact to be proved in the prosecution for a breach of duty under s 19 of the WHS Act: Walton J at [372] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]). 2. 17. Given the control exerted by the appellant over Mr Edwards and Mr Williams, the appellant clearly did 'permit' Mr Edwards to climb onto the trailer when he attempted to unload the wood piles: Walton J at [385]-[388] (Beech-Jones CJ at CL agreeing at [19] and McNaughton J agreeing at [399]).

[4]

JUDGMENT

BEECH-JONES CJ at CL: On 10 November 2021, the appellant, Saunders Civilbuild Pty Ltd, was convicted of an offence under s 32 of the Work Health and Safety Act 2011 ("the WHS Act") (SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605; ("Saunders Civilbuild (No 1)"). It appeals against that conviction pursuant to s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW).
The background facts and circumstances of the prosecution along with a summary of the primary judge's reasons are set out in the judgment of Walton J. On appeal it was accepted that the elements of the offence were that the appellant: (1) conducted a business or undertaking; (2) owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of workers engaged by it or workers whose activities are influenced or directed by it while those workers were at work in the business or undertaking; (3) failed to comply with its health and safety duty; and (4) the failure exposed an individual to risk of death or serious injury.
In this Court, only element (3) was in issue. The particular health and safety duty that was owed by the appellant and found to have been breached was that imposed by s 19(1) of the WHS Act, the relevant terms of which are reflected in element 2 (see [138]). Further, s 19(3) provides, inter alia, that, without limiting the duty imposed by s 19(1), a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the "provision and maintenance of safe systems of work."
One of the individuals who was found to have been exposed to a risk of death or serious injury by the appellant's breach of duty was the late Mr Geoffrey Edwards. A labourer employed by the appellant, Mr Nathan Williams, was the other. On 16 February 2018, Mr Edwards was the driver of a truck which was contracted to deliver an excavator and timber piles to a residential building site on behalf of the appellant. When he arrived at the site, he was assisted by Mr Williams, and by a supervisor employed by the appellant, Mr Stephen Brown. While they were attempting to unload the first of three bundles of timber piles, Mr Edwards climbed onto the top of the load of timber piles and Mr Williams climbed onto the trailer. After the first bundle of timber piles was lifted, Mr Edwards fell from the truck and suffered a serious head injury that led to his death a few days later.

[5]

Ground 1 of the Appeal: Finding the offence proven

Ground 1 of the notice of appeal contends that the primary judge "erred in law and fact" in concluding that it was established by the evidence that the charge was proved beyond reasonable doubt. Clearly this ground is far too widely expressed. However, some precision surrounding the ground emerged during oral argument.
One aspect of the first ground of appeal is a challenge to the rejection by the primary judge of the part of Mr Brown's evidence noted at [5]. This is addressed in detail by Walton J (at [233]-[235]). The essence of the complaint on appeal is that, in rejecting Mr Brown's evidence partly on the basis that the supposed timing of the conversation was "far too convenient for my liking" (being the day before the accident), [5] the primary judge ignored the context that Mr Brown said the conversation occurred in, namely a discussion about why the piles had been tied in string (i.e. pre-slinging). [6] I am not satisfied that his Honour overlooked that context. An assessment of the credibility of this aspect of Mr Brown's evidence is something that his Honour enjoyed a distinct advantage compared to this Court. Leaving aside the difference between an appeal in the strict sense and an appeal by way of rehearing, no basis for disturbing that finding has been established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22). I otherwise agree with Walton J's reason for rejecting this challenge.
As explained by Walton J, the primary judge upheld three of the four particulars set out in [17] of the Summons, each of which was sufficient to make out the charge.
Particular [17(a)] was upheld by the primary judge. It provided: (a) Providing and implementing a safe work method or safe work procedure for the loading and/or unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards' heavy combination vehicle, including the following steps and/or requirements: (i) access to loads on the back of trucks and/or trailers must be obtained from the ground; and/or (ii) preparation of materials for the loading and/or unloading of materials including the rigging of loads, must be performed from the ground; and/or (iii) where access to the backs of trucks and/or trailers and/or onto loads, including the rigging of loads, is required in preparing for and/or during the loading and/or unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or (iv) where work in preparation for and/or in the course of loading and/or unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall. For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.

[6]

Grounds 2 and 3 of the Notice of Appeal

Ground 2 of the appeal contends that the primary judge erred in not applying his Honour's reasoning for refusing a stay of the proceedings based on the presence of the word "and/or" between the words "loading" and "unloading" in the particulars by construing it as a reference to both. Ground 3 contends that the primary judge erred in concluding that the word "permitted" in par 16 of the summons was not an essential fact that had to be established by the prosecution. Paragraph 16 alleged that the appellant "permitted" Mr Williams and/or Mr Edwards to access to the trailer of Mr Edward's truck when he arrived at the building site.
I agree with Walton J's reasons for rejecting these grounds. In relation to ground 2, it is evident from the above that the primary judge's analysis of the evidence concerning the verbal direction and pre-slinging was referable to the loading and unloading of trucks generally and Mr Edward's truck in particular. In relation to ground 3, given the control exerted by the appellant over Mr Edwards and Mr Williams at the site at which Mr Edwards attended, it clearly did "permit" him to climb onto the trailer attached to his truck when he attempted to unload the excavator and wood piles. In any event, that was not an "essential fact" that had to be proved by the prosecution to make out the charge.

[7]

Future progress

Lastly, I note that at the hearing of the appeal there was some uncertainty about whether the appeal extended to include an appeal against sentence. The appeal concluded on the basis that the Court would publish its judgment in relation to the conviction appeal with the parties then having liberty to apply in respect of sentence. The parties should have liberty to apply to Walton J for directions in relation to sentence, although it should be noted that if a sentence appeal is to be pursued, a new Court will need to be constituted by the Chief Justice.
I agree with the orders proposed by Walton J.
WALTON J: By a Notice of Appeal filed 13 February 2023, Saunders Civilbuild Pty Ltd ("the appellant") brought an appeal under s 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW) against a conviction for an offence contrary to ss 19(1) and 32 of the Workplace Health and Safety Act 2011 (NSW) ("WHS Act").
The conviction followed upon the judgment of Scotting DCJ ("the primary judge") on 10 November 2021 in which his Honour found that the offence had been proven: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605 ("Saunders Civilbuild (No 1)").
The conviction was formally entered at the conclusion of the sentence proceedings on 18 May 2022. In his Honour's sentencing decision, Scotting DCJ ordered the appellant to pay a fine of $375,000 along with a series of adverse publication orders pursuant to s 236 of the WHS Act: SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163.
Whilst the Notice of Appeal in these proceedings refers to an appeal on conviction and sentence, the sentencing judgment of Scotting DCJ was not formally put before the Court and no submissions were advanced with respect to that appeal.
A submission was faintly advanced by Ms M Cunneen, senior counsel for the appellant, that a determination by this Court that the appeal was partially successful might result in a revisiting of the sentence imposed upon the appellant, conceivably because the establishment of a single particular of a charge is sufficient to sustain the conviction of the appellant: Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 LGERA 361; (1997) 98 A Crim R 481 at 365 (Gleeson CJ with whom Ireland and Bruce JJ agreed).

[8]

The Prosecution

The charges arose from circumstances in which Mr Geoffrey Edwards fell from his truck during the course of unloading piles under contract with the appellant for the purposes of the appellant undertaking piling works on behalf of Beechwood Homes (NSW) Pty Ltd ("Beechwood") at Lot 87, 4 Rigney Place Shoal Bay ("the site"). Mr Edwards suffered a blunt force head trauma and not withstanding hospital treatment, he died six days after his fall on 16 February 2018 ("the incident").
On 31 January 2020, SafeWork NSW ("the respondent"), brought a prosecution against the appellant by a Summons filed in the District Court of NSW on 31 January 2020 ("the Summons"), alleging, as mentioned, contraventions of ss 19(1) and 32 of the WHS Act ("the charge").
The charge alleged the following: On 16 February 2018, at Lot 87 (also known as "4") Rigney Place Shoal Bay in the State of New South Wales, Saunders Civilbuild Pty Ltd, being a person conducting a business or undertaking, who had a duty under s 19(1) of the Work Health and Safety Act 2022 (the Act) to ensure so far as reasonably practicable, the health and safety of workers while workers are at work in the business or undertaking, did fail to comply with the duty and the failure to comply with that duty exposed workers, in particular, Mr Nathan Williams and/or Mr Geoffrey Edwards to a risk of death or serious injury, contrary to section 32 of the Act.
The appellant entered a plea of not guilty to the charge and the proceedings were heard in a summary trial before Scotting DCJ on 20, 21 and 22 September 2021 and 5 and 7 October 2021. Relevantly, the particulars of the charge were: 16. The defendant permitted Mr Williams and/or Mr Edwards to access the trailer of the heavy combination vehicle and/or the frames on the trailer and/or the load on the frames during preparation for and/or during the unloading the packs of piles from the heavy combination vehicle. 17. The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers, in particular Mr Williams and/or Mr Edwards, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers. a) Providing and implementing a safe work method or safe work procedure for the loading and/or unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards' heavy combination vehicle, including the following steps and/or requirements: i) access to loads on the back of trucks and/or trailers must be obtained from the ground; and/or ii) preparation of materials for the loading and/or unloading of materials including the rigging of loads, must be performed from the ground; and/or iii) where access to the backs of trucks and/or trailers and/or onto loads, including the rigging of loads, is required in preparing for and/or during the loading and/or unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or iv) where work in preparation for and/or in the course of loading and/or unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall. For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding. b) Ensuring, as far as is reasonably practicable, that where its workers are engaged in the loading/unloading of materials from vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, those workers were adequately instructed and/or trained in a safe work method or procedure for the unloading of such materials, which set out the step by step requirements to be followed in preparation for and during the loading and/or unloading of materials. c) Providing adequate supervision for its workers engaged in the unloading of materials from heavy combination vehicles, including the loading and/or unloading materials such as packs of piles from the subject heavy combination, so as to ensure as far as is reasonably practicable that its workers were not exposed to a risk of falling from height whilst engaged in loading and/or unloading of materials from vehicles. d) Consulting, co-operating and co-ordinating with other duty holders at the site, in particular Mr Edwards, to ensure that the above measures and processes were implemented and enforced during loading and/or unloading of materials from heavy combination vehicles. 18. On or about 16 February 2018, as a result of the defendant's failures, workers were exposed to a risk of death or serious injury whilst at work in the defendant's business undertaking. 19. On or about 16 February 2018, whilst preparing for and/or engaging in the unloading of materials, namely a pack of piles, from the heavy combination, Mr Edwards fell from height and sustained serious injury. 20. The injuries sustained, by Mr Edwards, which result in Mr Edward's death, were a manifestation of the risk.

[9]

Factual Background

The appellant operated a business involving construction work including bridge design and construction, wharf construction, major concrete and building works, pre-cast concrete manufacturing and piling works. The appellant's piling services operated from a yard in Redhead in New South Wales ("the yard").
On or about 31 March 2017, the appellant acquired Civilbuild Pty Ltd ("Civilbuild") that operated the business of providing piling services and other construction activities. Thereafter, the appellant operated the business that was formerly conducted by Civilbuild.
Prior to the acquisition of Civilbuild, Civilbuild had implemented two Safe Work Method Statements relating to the activities of loading and unloading trucks and pile driving. (In this judgment, the abbreviation "SWMS" will be used for both the singular and plural versions of "Safe Work Method Statement").
The first of the SWMS was entitled "Civilbuild Pty Ltd Safe Work Method Statement Loading and Unloading Trucks". This SWMS was dated 25 February 2016.
Typical of SWMS operating at industrial enterprises, the SWMS provided a hierarchy of control with respect to the risks which were rated both in terms of the potential hazards and the risk remaining after the introduction of the safety control.
The second SWMS, which operated at the time of the accident giving rise to the charge, was the "Civilbuild Pty Ltd Safe Work Method Statement - Pile Driving SWMS (Number 6)" ("the Pile Driving SWMS"), dated 27 January 2016. (The Pile Driving SWMS, in evidence, concerned the work for Beechwood).
The Pile Driving SWMS contained a risk assessment table which appeared in the form of a matrix, describing 'severity' on the horizontal bar and 'likelihood' on the vertical bar which provided an overall risk rating. There was a hierarchy of controls ranging from the most effective, 'eliminate,' to the least effective, 'administrative' and 'personal protective equipment'. The Pile Driving SWMS then addressed the work process through a number of steps, identifying in each case a step-by-step procedure, possible hazards, a risk rating, safety controls, the residual risk rating and who was responsible.
Step eight concerned a step-by-step procedure with respect to Pile Rig set up. The possible hazards identified were: loading and unloading equipment; routine pre-start (slip and fall hazards when walking around and inspecting equipment), unplanned movement of machinery during ground level inspection and access deck. The risk rating was high and after various safety controls were applied the residual risk rating was low. What step eight, in the Pile Driving SWMS, did not identify as a possible hazard was the unloading of piles from the truck. No other step in the procedure made provisions for that hazard and as a result, there were no safety controls within the SWMS addressing that hazard.

[10]

The WHS Act and Relevant Legal Principles

Part 2 of the WHS Act places health and safety duties upon duty holders, namely, persons conducting a business or undertaking.
The primary duty of care is specified in Div 2 of Pt 2 of the WHS Act. Section 19 of the WHS Act provides as follows: 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. (4) If: (a) a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and (b) the occupancy is necessary for the purposes of the worker's engagement because other accommodation is not reasonably available; the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. (5) A self‑employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work. Note: A self‑employed person is also a person conducting a business or undertaking for the purposes of this section.

[11]

The Nature of the Appeal

Section 5AA(1)(a) of the Criminal Appeal Act 1912 (NSW) provides: (1) A person: (a) convicted of an offence; or (b) […] (c) […] by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order.
Section 5AA(7) further provides: The section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.
An appeal under s 5AA is an appeal in the strict sense, in that error must be shown: Bulga at [96].

[12]

GROUNDS OF APPEAL

There are three grounds of appeal expressed as follows: 1. The learned trial judge erred in law and fact in concluding that it was established by the evidence that the charge was proved beyond a reasonable doubt. 2. The learned trial judge erred in not applying his own reasoning, from his interlocutory decision at trial on the construct of the charge, to the judgment. 3. The learned trial judge erred in law and fact in concluding that the word 'permitted' in paragraph [16] of the charge was not an essential fact that must be established by the prosecution.

[13]

GROUND 1 - Whether the trial judge erred in law and fact in concluding that it was established by the evidence that the charge was proved beyond reasonable doubt.

The trial judge found that the measures in particulars 17(a)(i-iv), (b) and (c) were proven beyond reasonable doubt thereby satisfying element 3 of the charge to the requisite standard, and accordingly, finding that the charge against the appellant was proved.
His Honour made those findings by considering seriatim the particulars in particular 17 of the charges in three groups wherein the offence was found proven: particulars 17(a)(i)-(iv); [15] 17(b) [16] and 17(c). [17]
It is convenient to approach Ground 1 with a similar delineation between the particulars, adapted to the approach adopted by the parties who made separate submissions as between particulars 17(a)(i)-(ii) and 17(iii)-(iv) and 17(b) and (c). It is convenient to consider the trial judge's reasons in that context, but it is important to recall that particular 17(a) pleads a failure to provide and implement "a safe work method" or "safe work procedure" which failure included the omissions in particular 17(a)(i)-(iv).
Further, before turning to those considerations, it is convenient to mention two further introductory matters.
His Honour made some broader findings regarding element 3 of the charge as follows: 1. The pleaded risk was the risk of workers falling from a height whilst loading or unloading materials from the back of the truck. [18] 2. The likelihood of the risk occurring was moderate to high if a worker stood on top of the piles. The piles were rounded and did not provide a firm foothold. In that section of the trailer there was no flat surface where a worker could stand to undertake the work. Standing on the piles posed an unacceptable risk that the worker could trip or lose their footing. [19] The likelihood of the risk occurring was low if a worker stood on the low loader part of the trailer. 3. If the worker climbed on the trailer to unload the piles, it was necessary to access the part of the trailer over the gooseneck because the piles had to be slung in two places to make the load stable when it was lifted off. If this method was adopted the worker would stand on top of the piles or on the cross brace of the U frame where there was no solid footing. [20] 4. The degree of harm that might eventuate if a person fell off the trailer was significant and included a risk of death. The top of the load of timber piles was 2400mm above the ground and the low loader part of the trailer was 1000mm above the ground. [21] 5. The risk was obvious and had been identified by the defendant as the basis for the issue of the verbal direction. The risk was well known in the industry and was the subject of objective guidance material, including the video. In April 2016, SafeWork NSW published the "Managing the Risk of Falls at Workplaces" Code of Practice ("the Falls Code"), which is an approved code of practice under s 274 of the Act.. [22] 6. The introductory part of the Falls Code recognises that "falls are a major cause of death and serious injury in Australian workplaces" and that "hazards are found in many workplaces where work is carried out at a height." [23] The Falls Code reiterates the obligation of duty holders under s 46 of the WHS Act to consult, cooperate and coordinate activities with other duty holders in order to eliminate or minimise all risk. 7. The defendant had identified that the risk of a fall from height could be controlled by prohibiting workers from accessing the backs of trucks or trailers during the loading or unloading practice. The defendant adopted an engineering control in the practice of pre-slinging loads so as to make it unnecessary for workers to access the back of trucks or trailers to unload piles. The verbal direction and the engineering control were implemented by the defendant without any inconvenience to loading and unloading. 8. Returning to the Falls Code, his Honour identified that control measures available could be varied. Working on the ground, or otherwise, a solid construction, were stated to be the two highest order controls. Working from the ground is most effective way of protecting workers from the risk of falls. [24] 9. His Honour then turned to various sections of the Falls Code by reference to the hierarchy of controls. Those controls include full protection devices, working position systems, fall arrest systems and administrative controls, the last control being found in s 8 of the Falls Code. 10. With respect to s 8 of the Falls Code, his Honour made the following observations: [163] … The Falls Code states that administrative controls may be used to support other control measures and may include "no go" areas, permit systems, the sequencing of work and safe work procedures. The Falls Code recognises that "[a]n administrative control may be as simple as a safe work procedure that describes the steps involved in safely undertaking a task" and "may also include any particular training, instruction and the level of supervision required." The Falls Code is clear that using administrative controls exclusively to minimise the risk of falls is only appropriate when it is not reasonably practicable to use a higher order control. [25] 1. His Honour observed that all the above considerations were relevant to the issue of whether the pleaded measures in particulars 17 were reasonably practicable.

[14]

Particulars 17(a)(i)-(ii)

Scotting DCJ expressed the view that the measures in these particulars were encapsulated by the verbal direction and the pre-slinging engineering controls. He further opined that neither the Pile Driving SWMS nor the Loading and Unloading Trucks SWMS contained any reference to those measures.
The bases for Scotting DCJ's conclusion that the respondent had proven the particulars were twofold, as follows: 1. The incorporation in the measures in the Pile Driving SWMS and a requirement that workers on site be required to sign the SWMS before commencing work would have "clearly stated" the prohibition against accessing the back of the truck. This was a reasonably practicable step to convey the verbal direction which was necessary to control the risk. 2. Notwithstanding Mr Brown having a responsibility to supervise Mr Edwards and to enforce the measures in the Pile Driving SWMS and the verbal direction, he did not enforce the verbal direction when he saw Mr Edwards climb onto the load. The inclusion of the content of the verbal direction into a SWP such as the Pile Driving SWMS would have had a demonstrable impact on safety. The signing on to a safe work procedure would have ensured the requirements of the appellant which were introduced by the verbal direction and the pre-slinging practice were "systematically communicated to the contract drivers."
In summary, the appellant made the following submissions with respect to this aspect of Ground 1: 1. The reasoning of the primary judge, with respect to this issue is confined to those paragraphs directed to these particulars at paragraphs [165]-[176] of Saunders Civilbuild (No 1). As to that submission, it can be noted at this point that it does not appreciate the way that his Honour systematically structured the judgment to the ultimate conclusion with respect to those particulars. Nor does it sit comfortably with the principle that, in considering error, an appellate Court should properly look to the whole of the judgment. 2. The only material difference between the appellant's "safe work method for the works before the incident and the appellant's safe work method for the works after the incident" was the act of writing "the amendments" into the SWMS after the incident. The issue at trial in this respect was whether this was a reasonably practicable measure in and of itself. The primary judge's reasoning was that the act alone of writing the amendments into the SWMS was an act that established beyond reasonable doubt that the measures in particulars 17(a)(i) and (ii) were reasonable, reasonably practicable measures. 3. By reliance upon the judgment of the High Court of Baiada at [15] and [33], the appellant argued that the words 'reasonably practicable' indicate that a duty does not require a defendant to take every possible step that could be taken and the bare demonstration that a step "could" have been taken and that, if taken, it "might" have an effect on the safety of a work environment, does not "without more", demonstrate that the defendant has failed to fulfil the duty to take steps as was reasonably practicable. 4. It was not enough to identify and rely upon a post incident step by the appellant that could have been taken as proof positive of the existence of a reasonably practicable measure. 5. It was necessary for the primary judge to have regard to the evidence given at trial in order to determine whether the additions made after the incident proved, beyond reasonable doubt, that they were reasonably practicable measures within the meaning of s 18 of the WHS Act to achieve the aim of minimising the pleaded risk, so far as is reasonably practicable. 6. The appellant did not submit, as a general proposition that a documented system, reflecting an operational reality at a workplace, is not a system that better minimises risk to workers over and above an identical, but undocumented system. It was acknowledged that decided cases have favoured "the former approach." 7. Rather, the appellant's submission is that it was necessary for the evidence of the trial to prove how the documented system achieved that outcome. 8. The evidence of the trial went no further than to prove something was done by the appellant after the incident, and this was not, of itself, evidence that it was a reasonably practicable measure with respect to achieving objective of s 17 under the WHS Act. If all that was needed for a prosecutor to prove a part of element 3 was to prove a step was taken by the defendant after the incident, without having to lead evidence to prove beyond reasonable doubt that such a step had the effect of further minimising the risk to the health and safety of workers, then no defendant could put the prosecutor to strict proof. In that event, defendants would be required to mount a positive defence. Neither of these outcomes was the intention of the WHS Act which operates to the same evidentiary standards as any criminal trial. 9. As to the evidentiary position, the appellant made reference to the following: 1. On the day of the incident, a Prohibition Notice was issued by SafeWork prohibiting works from continuing until the appellant developed a safe system of work for unloading the timber piles from the truck. 2. Later that day, the Prohibition Notice was lifted on the basis of the handwritten amendments to the Pile Driving SWMS. 3. Submissions were advanced as to the evidence of Mr Bromilow at [87]-[94] of the plaintiff's written submissions which have earlier been rejected in this judgment (at [88]-[98]). I will return below to the particular considerations arising out of Baiada. 4. It was submitted that the evidence disclosed that, prior to the incident, the appellant had given the verbal direction and the appellant supplied workers with the correct plant in the form of slings in order to load and unload bundles of piles from the ground. Further, Mr Brown was aware of the verbal direction given to him by the appellant, as was Mr Williams. I propose to briefly deal with this contention at this juncture. It is true that the appellant had issued the verbal direction to Mr Brown and Mr Williams. Both of them were aware of the verbal direction and the pre-slinging arrangements. However, I will later set out my finding that the finding of the primary judge that Mr Edwards had not received the verbal warning on 15 February 2018 should not be disturbed on appeal. Further, the evidence shows that Mr Edwards did not receive a verbal warning for pre-slinging nor was he advised of the pre-slinging control (to remain on the ground) before the incident. Further, the evidence relied upon by the appellant to suggest that it had supplied workers the correct plant in the form of slings, is not established by the evidence of Mr Bromilow (at T167.29-35) relied upon by the appellant. Assuming the sling may be described as plant, Mr Bromilow's evidence does not deal with whether it was the correct plant or otherwise. 5. It was submitted that, first, the amendments to the Pile Driving SWMS reflected the verbal direction. Secondly, the appellant continued to use the same equipment, namely slings. Thirdly, it was submitted the amendments were understood by workers to be an addition to the SWMS that reflected the instruction given to them before the incident. The first two propositions may be accepted so far as the proposition was that the amendments to the Pile Driving SWMS sought to capture in writing the verbal direction and pre-slinging requirements. In support of the last proposition, reliance was placed upon evidence of Mr Brown where he agreed with the proposition put to him in cross-examination that the "online course" (presumably a reference to the video) and the written direction involved the same instruction that had been given prior to the incident. The evidence did not bear upon its nature or impact. Mr Brown gave evidence shortly before the passage relied upon by the appellant (T114.49-T115.2) that Mr Brown had observed Mr Edwards climbing on top of the piles that Mr Brown had not instructed Mr Edwards to do so. However, as earlier discussed, Mr Brown gave no instructions not to do so in the circumstances. The appellant's reliance on Mr Williams evidence (T135.35-45) went no further than having him, as Mr Brown did, identify that the written instruction introduced after the incident had the same content as the verbal direction. The evidence of Mr Williams did not extend to the significance of the written direction in ensuring compliance with the SWP adopted by the appellant. 1. The appellant was critical of the primary judge's observation that the written amendment to the Pile Driving SWMS was a simple measure contending that the step was reasonably practicable, merely because it was simple to do so. A step is capable of being considered reasonably practicable only after taking into account and weighing up all relevant matters in s 18 of the WHS Act. 2. Next, it was submitted that there was no evidence to support the primary judge's conclusion that signing on before the commencement of work to the SWMS would have resulted in the obligation being clearly stated and acknowledged by workers. It was further submitted that the conclusion was not relevant. However, the conveying of a verbal direction was not, of itself a reasonably practicable step. Rather, the Court was required to assess whether the conveying of the verbal direction by the written amendment to the Pile Driving SWMS was a reasonably practicable measure, as such. 3. His Honour's assessment that Mr Brown had not enforced the control measure was not relevant to this aspect of the particulars. 4. Overall, there was no evidence to support a conclusion that the written additions to the Pile Driving SWMS would have had a demonstrable impact on safety. His Honour's conclusions were speculative. It was not open to his Honour to infer that, as Mr Brown was required to enforce the control measures, signing on to the control measures would have ensured the requirements were conveyed to contract drivers such as Mr Edward. 5. The appellant advanced two propositions as to the evidence in this respect as follows: 1. The appellant contended that the primary judge inferred that the inclusion of the amendment that had to be signed on to was a way of ensuring that the requirements of the verbal direction were conveyed to contract drivers such as Mr Edwards. That evidence, it was contended, was not supported by the evidence given at trial and his Honour erroneously determined that, even though Mr Brown gave clear evidence that he understood the scope of his role was not constrained to the content of the Pile Driving SWMS, the amendments would have had a demonstrable impact upon safety. 2. His Honour wrongly rejected the clear and unchallenged evidence given by Mr Brown that the content of the verbal direction was conveyed to Mr Edwards the prior day "without the additions needing to be made to the SWMS." 1. I shall pause with the summary of the appellant's submissions to deal with the first of those propositions in 14(a) above. In my view, the evidence relied upon by the appellant to support the first proposition does not do so. Mr Brown gave evidence that his role was to "make sure the jobs were done right, and the jobs done safely" and with respect to the unloading to "do it safely" (T107.17-20 and T107.39-44). The evidence given by Mr Brown at those passages reflected no more than a broad understanding by him that the role of supervisors was to effect the work to be done safely, but he was directed by those superior to him, principally by written communications, but also by verbal directions as to what a safe system of work constituted. It is too much of a reach from the evidence relied upon by the appellant to infer that Mr Brown understood that he had some wider remit to engage in safety supervision generally. After all, Mr Brown gave evidence that the practices adopted by Mr Edwards on the day of the incident, including standing on the top of the piles and having his hands on the pack of piles that were in the process of being lifted, was in accordance with the practice done many times before and "was safe" (T103.1-18). Further, the evidence revealed that SWMS were to be signed on to by workers and that inductions were to be undertaken with respect to the SWMS as required by the IMS. This reflected the practices adopted after the incident, with respect to the amendments to the Pile Driving SWMS and the creation of other relevant SWMS. 2. The appellant further contended that the primary judge could not have been satisfied beyond a reasonable doubt that the amendments would have had a demonstrable impact on safety and ensured communication of the verbal direction. Nor could it be inferred that Mr Brown would have been more likely to enforce a written direction expressed in the same terms as the verbal direction. There was no evidence to this effect. Mr Brown's evidence was that he was not confined to enforcing the Pile Driving SWMS but was concerned with safety generally. I note in that respect that the appellant also relied upon [189] of Saunders Civilbuild (No 1) as his Honour confirming that view, but I do not consider this aspect of His Honour's judgment conforms with the appellant's submission accordingly. I do not accept the appellant's submission that there is an inconsistency between the findings of the primary judge at [169] and [189] of his judgment. His Honour's conclusion was that Mr Brown understood well that his role was to enforce the control measures contained within the Pile Driving SWMS. The appellant submitted that the primary judge found that on the one hand, Mr Brown understood his role was to ensure safety, including where the relevant control measures were not reduced to writing but on the other hand was more likely to enforce the amendments if they were reduced to their written form. However, his Honour's finding was in fact entirely consistent. When properly analysed, his conclusion was that Mr Brown well understood and applied control measures contained within the Pile Driving SWMS but that, by contrast, he did not perceive or at least did not act upon, the verbal directions, which had not been stipulated in that written form. 3. On proper enquiry into the evidence, it was not open to the primary judge to find that the prosecution proved beyond reasonable doubt the measures, in particulars 17(1)(i) and (ii), were reasonably practical measures such that the prosecution had proved beyond reasonable doubt the appellants contravention of s 19.

[15]

Consideration

As stated earlier, the appellant challenged the finding by Scotting DCJ rejecting Mr Brown's evidence that he had issued a verbal direction to Mr Edwards on 15 February 2018, although there was no separate ground of appeal in that respect. Further, it was submitted that this Court should not accept his Honour's conclusion that the pre-slinging measures to ensure that employees stayed on the ground when unloading had not been conveyed to Mr Edward. Those submissions were advanced in support of the proposition by the appellant challenging the primary judge's conclusion that particulars 17(a)(i) and (ii) had been made out.
As earlier identified, the appellant accepted that a documented system, reflecting an operational reality at a workplace may be a system that "better minimises risk to workers" over and above an identical but undocumented system, but that it was necessary at trial for there to be evidence which proved how the documented system achieved this. The appellant also advanced a slightly different proposition, namely, that the prosecutor had failed to prove the measures in 17(a)(i) and (ii) (and the remaining particulars in (iii), (iv), (b) and (c)) minimised the risk to a greater extent than the measures in place "before the incident."
During the course of argument, the Court enquired of Ms Cunneen SC as to whether the appellant's contentions in that respect, at least as to particulars 17(a)(i) and (ii), were predicated upon Mr Brown, in fact, having given the verbal direction to Mr Edwards the evening before the incident. Senior counsel accepted that that must be the case, but slightly later qualified the answer by submitting that not only was there an absence of proof that adding the amendment would be a more effective measure to minimise the risk, but also that "both might mean that Mr Edwards never hears about it…" (it may be extrapolated from the context of the submission that when senior counsel used the word "both" she was referring in that respect to the amendments and the verbal direction).
Ms Cunneen SC's point in that latter respect may be accepted to the extent that it is theoretically possible that, whether the verbal direction was issued in writing or orally, Mr Edwards may not have been provided with the instruction. However, there are three fundamental flaws with this contention.
First, the evidence does not support that there is an equal probability that the verbal direction or the equivalent of the verbal direction in a written instruction such as a SWMS may not be delivered to workers. There was no systematic conveyance of the verbal direction or the engineering control to contract drivers prior to the incident. Even aside from that consideration, Mr Edwards had not received the verbal direction prior to the disputed communication on 15 February 2018. As I will discuss below, it was also open to Scotting DCJ to conclude that the verbal direction had not been issued on the 15 February, notwithstanding Mr Brown's evidence to the contrary.

[16]

Particulars 17(a)(iii) and (iv)

Scotting DCJ accepted that the fall protection measures set out were not reasonably practicable to be implemented at the site as they were only to be contemplated if access to the back of trucks or trailers during the process of unloading was "required". As the unloading of the piles on the day of the incident was capable of being undertaken in a way that obviated the need for a person to climb on the load, the work could have been done from the ground and, therefore, it followed that the fall protection measures specified did not need to be considered or implemented.
However, those control measures were only introduced after the incident. His Honour thereby inferred that "it was necessary to do so in contemplation of other work that it undertook or to cover off on the possibility that, in a particular loading or unloading situation, access to the back of a truck or trailer might be 'required'".
The amendment of the appellant's existing safety documents to incorporate the matters in particulars 17(a) were simple and inexpensive. They were not grossly disproportionate to the risk.
The appellant's submissions in this respect placed significant reliance upon the component of particular 17(a) which defined fall protection (or appropriate fall protection) as including a purpose-built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or scaffolding.
As to the first measure, Inspector Halcroft stated that he did not "know that a work platform would really be practicable."
As to the second measure, Inspector Halcroft agreed that there were a number of different types of temporary work platform, it thereby being unclear (as it was not clarified by the prosecutor), what temporary work platform was required as a reasonably practicable measure.
As to the third and fourth fall protection measures, Inspector Halcroft agreed that welding handrails onto someone else's truck might be impracticable both because of that step and because a design engineer or manufacturer approval would be required and that wider loads represent a further problem as to practicability.
As to the fifth fall protection measure, Inspector Halcroft agreed that, given the height to the lower level of the trailer or the "upper deck" there might not be sufficient height for an "inertia reel" to work properly.

[17]

Consideration

It is plain that the measures identified in particulars 17(a)(iii) and (iv) were not reasonably practicable measures when regard was had to the circumstances of the incident. However, as has been pointed out earlier in the discussion of principles, it is erroneous to reason from the incident in order to determine whether there has been a failure to discharge the duty under s 19 of the WHS Act.
Nonetheless, to find such a failure, as was accepted by both parties, his Honour would need to reach a conclusion of a general character that the measures were required to avoid or reduce risk on the basis of an inference being drawn as to what may be required because of the measures implemented after the incident.
It is true that the post incident measures did contemplate the use of fall protection equipment where the loading and unloading processes could not be conducted from the ground. However, there was no proper basis in the present case, upon which his Honour could draw an inference of the kind that he did. This is because there was no evidentiary foundation to draw the inference.
There was no evidence from any witnesses establishing when, if at all, the appellant would have been required to contemplate the measures; whether the appellant had used such measures in the past; whether it operated any other trucks capable of using these measures; whether any of its contractors operated any other trucks capable of using those measures or whether the appellant ever had any of these measures at site. In the result, I consider the appellant has established error in the judgment below with respect to particular 17(a)(iii)-(iv). The primary judge was in error in finding that the measures in particular 17(a)(iii) and (iv) constituted reasonably practicable steps that the defendant should have taken prior to the incident. The prosecutor did not establish a failure in the provision and implementation of a safe work method or safe work procedures with respect to the measures pleaded in particulars 17(a)(iii) and (iv). The decision below was erroneous to find otherwise.

[18]

Particular 17(b)

Scotting DCJ was satisfied beyond reasonable doubt that the defendant should have trained its workers on the content of the safe work method or safe work procedures as referred to in particular 17(a) and that such training was a reasonably practicable step to take. In coming to that conclusion, the primary judge had regard to the following: 1. The requirement for pre-slinging loads had been followed on the day of the incident with respect to the first bundle of piles. 2. However, the training was inadequate in two major respects. First, it did not convey to Mr Brown that climbing onto the back of piles was unsafe. Mr Brown's evidence was that he thought it was safe when it clearly was not. Secondly, the training did not cause Mr Brown to stop work and enforce the rules. 3. His Honour was not satisfied on the evidence that contract drivers such as Mr Edwards had been systematically trained on the verbal direction or the practice of pre-slinging the load. As earlier mentioned, his Honour found that Mr Edwards had not been told about the verbal direction or the practice of pre-slinging the load. The defendant admitted that it did not provide regular training to Mr Edwards. 4. Mr Edwards was not trained on the content of the Pile Driving SWMS that required him to stay clear of the excavator arm and the load during the unloading process (per step seven). 5. The primary judge did not consider that the Safety Alert issued after the incident was a measure to be taken by the appellant as it would have required "perfect hindsight based as it was on the incident itself." 6. However, the training given after the incident at toolbox talks was systematic and documented. The video provided a visual documentation of concepts that may not have been as easily understood from the reading of the relevant safety documents. The Driving Induction training package conveyed information required by particular 17(a). That package included an assessment of competency on the training to demonstrate that the training had been delivered and understood by the drivers and could be relied upon by the appellant to prove the same. The appellant's workers were also trained on the amendments to the SWMS when they were introduced. 7. None of the toolbox talks, video, Induction Training Package or training on the SWMS involved steps grossly disproportionate to the risk. The primary judge was satisfied that the defendant was not significantly inconvenienced providing the training on the amendments.

[19]

Consideration

Particular 17(b) concerned a failure to adequately instruct or train in a safe work method or procedure for loading or unloading, inter alia, piles. The instruction or training required by the particular is described in the particular as a "step-by-step requirement to be followed in preparation for or during loading and/or unloading of materials."
Employing work health and safety parlance, his Honour considered the failure referred to in this particular by reference to whether the appellant had systematically trained contractors on the verbal direction and the practice of pre-slinging. There is no relevant difference in that respect as between the step-by-step approach referred to in the particular and the concept employed by his Honour.
The provision of adequate instruction and training which was systematic in nature would involve consideration of the nature and extent of the risk to safety; the nomination of relevant control measures; and the step-by-step basis by which the control measures are applied, including toolbox talks and inductions. So much is evident from the IMS (see cll 5.3 and 6.13; the Truck Operator SWMS and the Pile Driving SWMS post incident).
In the absence of the communication of the verbal direction to Mr Edwards it may not be suggested that Mr Edwards received any training, let alone systematic training. But even aside from that consideration, the evidence to which the primary judge referred established that the appellant did not provide any training to Mr Edwards as such, and the appellant was unaware of what training Mr Edwards had in fact received as to the risk of falls associated with accessing the back of trucks and trailers.
It follows that the primary judge was correct to find that Mr Edwards had not been systematically trained on the verbal direction or the practice of pre-slinging so as to obviate the need to access the backs of trucks and trailers during unloading.
These considerations were underscored by the fact that the appellant had introduced a significant change to a long-established practice whereby the verbal direction and engineering control replaced a void in instructions, directions or training associated with the risk of accessing the backs of trucks or trailers.
The question further raised by the appellant on the appeal is whether there was evidence which established that the provision of instruction and training would have had an impact on safety so as to minimise the pleaded risk.

[20]

Particulars 17(c)

Scotting DCJ's reasons for finding particular 17(c) proven beyond reasonable doubt are stated succinctly in his Honour's judgment at [188]-[194] as follows: [188] Whether there has been a failure to provide adequate supervision is a question of fact in each case. The circumstances to be considered will ordinarily include, at least: (a) the nature of the work the worker is required to undertake; (b) the extent of the worker's training and prior experience in the performance of such work; (c) the identity of co-workers with whom the worker will be performing the work and the extent of the training and experience of those co-workers: Vibro-Pile at [149]. [189] Mr Brown accepted in his evidence that he was the defendant's site supervisor for the work at the site on the day of the incident. He understood his role was to make sure that the job was done right and that the job was done safely. He accepted that his job was to make sure that the truck was unloaded safely and that included the enforcement of any safety controls identified in the relevant SWMS. [190] Mr Brown was in a position both as the defendant's supervisor at the site and as the operator of the excavator to stop the work and enforce the verbal direction when he saw Mr Edwards and/or Mr Williams access the back of the truck, but he failed to do so. Mr Brown also failed to stop the work when Mr Edwards was in close proximity to the load in contravention of the entry at Step 7 the Pile Driving SWMS. Mr Brown's conduct was the conduct of the defendant: s 244 of the Act. [191] Mr Brown's inadequate supervision permitted both Mr Williams and Mr Edwards to access the trailer during the unloading process. [193] The defendant submitted that it was not reasonably practicable to supervise Mr Edwards because there were times when he was expected to deliver plant and materials to site without assistance. However, that was not the factual scenario that presented itself on the day of the incident. Mr Brown was present on site, acting as the defendant's supervisor. He accepted that he was in charge of the unloading activity on behalf of the defendant. Mr Williams accepted that he was required to follow the directions of Mr Brown. Mr Brown had been given the verbal direction and for the reasons given was in the position as the supervisor of the work and as the operator of the excavator to stop the work and ask Mr Edwards to get down from the load and Mr Williams to get down from the trailer. [194] I am satisfied that there was no additional cost to the defendant in Mr Brown providing adequate supervision on the day of the incident and accordingly the cost was not grossly disproportionate to the risk.

[21]

Consideration

The respondent's submissions with respect to this particular are compelling and consist of the following propositions: 1. Messers Brown, Williams and Edwards had experience of working for the appellant's predecessor and for the appellant under a work system which did not recognise or address the subject hazard (or pleaded risk). The pre-incident safety documents did not identify or seek to address the risk. The existing work practice tolerated workers (both employees and contractors) accessing the backs of trucks without protection against falls. 2. At the time of the incident, Mr Brown and Mr Edwards were, therefore, continuing to operate under the misapprehension that it was safe for Mr Edwards to access the back of his truck (Mr Brown said as much and the holding of the same view by Mr Edwards may be inferred from his work practices). In the absence of a SWMS that dealt with the subject risk supported by systematic instruction, training, and supervision in relation to a significant change in the appellant's safe work practices for the loading and unloading of trucks, Mr Brown and Mr Edwards adopted what had been their standard procedure in relation to the unloading of piles from Mr Edwards' trailer. Those failures lay at the centre of the appellant's failure under the particulars 17. 3. Mr Brown's failure to discuss safety procedures with Mr Williams and Mr Edwards on the day of the incident before work commenced, and Mr Brown's failure to stop work and force the change in procedure when he saw Mr Williams on the lower deck of the trailer or Mr Edwards standing on the top of the load, was informed by the failure of the appellant to provide Mr Brown with a SWMS that identified the subject hazard, identify the subject risk and nominate both the relevant controls together with the relevant procedures to be adopted in the application of those controls, together with a systematic instruction and training in relation to the change of that procedure and his responsibilities as a supervisor to enforce the change in the work practice.
Whilst Mr Edwards climbing on to the piles may have happened "all of a sudden" and Mr Williams was in the result "non-plussed" as Ms Cunneen SC submitted, the approach Mr Edwards adopted on that day was no different to any procedure he had adopted beforehand, after the issuing of the verbal direction and the pre-slinging arrangements. Mr Brown responded to Mr Edwards' "nod" to undertake the process of unloading whilst Mr Edwards was situated on the piles.

[22]

Conclusion re Ground 1

The appellant has failed to establish an appealable error with respect to Ground 1 so far as that ground concerns particulars 17(a)(i)-(ii), (b) and (c). The establishment of any one of those particulars would be sufficient to sustain the conviction. It follows that Ground 1 of the appeal must fail.

[23]

Ground 2 - the learned trial judge erred in not applying his own reasoning from his interlocutory decision at trial on the construct of the charge, to the judgment

During the course of the trial, the appellant brought an interlocutory application that the prosecution be permanently stayed on the basis of the use of a conjunction, as the appellant described it an "and/or conjunction", throughout the charge made it duplicitous and uncertain such that it occasioned unfairness or prejudice on the appellant.
The primary judge delivered an interlocutory judgement on 5 October 2021 in which his Honour refused the appellant's application for a permanent stay: Safe Work (NSW) v Saunders Civilbuild Pty Ltd [2021] NSWDC 526 ("the interlocutory judgment").
In the interlocutory judgment, after considering the background circumstances of the matter and legal principles, his Honour referred to s 223 of the WHS Act, regarding multiple contraventions of the health and safety duty and various provisions concerning the power to amend the Summons (at [21]-[29] and [30]-36]).
His Honour then referred to the relevant part of the pleading being paragraphs [15]-[17] of the particulars and the parties' written submissions. The considerations of the appellant's primary submissions as to the application for a permanent stay were dealt with in paragraphs [46]-[50] of the interlocutory judgment as follows: [46] The defendant's primary submission fails to grapple with the language of the pleading. The defendant has not identified how the use of the conjunction in the Summons results in the consideration of 2.5 trillion alternative factual scenarios, other than mathematically. In each of the authorities relied on by the defendant, the use of the conjunction in the pleading gave rise to a large number of alternative allegations. However, for the reasons that follow, that is not the case here. [47] It must be remembered that an important principle in these cases is that the risk to be addressed is the general class of risks that a PCBU must provide for, rather than the specific risk that manifested itself in the incident: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6]. It follows that reasonably practicable measures that should have been taken by a PCBU to prevent a particular incident will usually have been necessary to prevent a variety of other scenarios that may be factually irrelevant to the incident that is the subject of the charge. [48] I will now turn to the use of the conjunction in the relevant paragraphs of the pleading by reference to the numerical labels in [38] above, as follows: (1) The first use of the conjunction is a reference to the person or persons who were exposed to the risk. An element of the offence is that a person was exposed to a risk of serious injury or death, but it is not necessary that there is an incident or that a person is injured: Kirk. A person can be identified by a class of persons such as persons at a workplace. No objection was taken to the evidence led by the prosecutor that both Mr Edwards and Mr Williams accessed the trailer of the heavy combination vehicle albeit onto different parts of the trailer. Section 233(1) of the Act permits the contraventions arising from the same set of facts exposing Mr Williams or Mr Edwards, or both of them, to the requisite risk to be charged as a single offence. (2) The second use of the conjunction is the most innocuous and the most repeated. It refers to the processes of loading and unloading, which were the times when a worker might access the back of a truck and be exposed to the hazard presented by a fall from height. A safe work method that focused only on unloading because that was the activity being undertaken at the time of the incident would not have controlled the risk during loading the truck. Prospectively, the defendant had to consider how the truck would be safely loaded and unloaded by reference to the risk that was present in both activities. (3) The third use of the conjunction is also innocuous. It refers to the fall from a truck or a trailer. Whilst the incident involved a heavy vehicle combination made up of a truck (the prime mover) and a trailer, it is foreseeable that the defendant also had cause to load and unload other trucks, including for example flatbed trucks, in which the rear load carrying area is fixed to the truck and is not properly described as a trailer. The third use is intended to add a reference to an elevated level from which a worker could fall. (4) The fourth use of the conjunction is also not problematic. Like the third use, it seeks to include another elevated level from where a worker could fall, being the U frame on the trailer. (5) The fifth use of the conjunction is also not problematic. Like the third and fourth uses, it seeks to include another elevated level from where a worker could fall, being the top of the load. (6) The sixth use of the conjunction refers to the process of preparation for unloading and does not cause any uncertainty. This would include, for example, providing that a worker was not to climb onto the back of a truck to undo load restraints as part of the preparation necessary to unload the truck, which would give rise to the risk of a fall as much as if the worker climbed onto the back of a truck during the task of unloading. (7) The seventh use of the conjunction relates to whether the elements of the safe work method are steps or requirements. In my view, the matters set out paragraph [17(a)] are requirements by virtue of the use of the word "must" in each of the sub-particulars. The use of the word "steps" is superfluous and no prejudice would arise if the words "steps and/or" were deleted from the chapeau to paragraph [17(a)]. (8) The eighth use of the conjunction makes it clear that the sub-particulars of paragraph [17(a)] are pleaded in the alternative. The defendant accepted that this was appropriate and it does not matter if it is achieved by the use of the conjunction or by some other form of words. (9) The ninth use of the conjunction is a quote from the "Managing the Risk of Falls at Workplaces" Code of Practice (the Falls Code) published by SafeWork NSW, which is an approved Code of Practice under s 274 of the Act. Those words were also adopted by the defendant in the Safe Work Method Statements (SWMSs) that it adopted after the incident. The use of the conjunction in that context is a reference to the possibility that a number of control measures might need to be deployed in combination to alleviate the risk of a fall. (10) The tenth use of the conjunction refers to the need for the defendant to provide training or instruction to its workers as to the safe work method for the loading and unloading of trucks. The need to provide training or instruction is referred to in section 19(3) of the Act. The pleading is that it was reasonably practicable for the defendant to provide training or instruction to the workers as to the safe work method. In this context, training and instruction have the same meaning. The evidence is that the defendant did not provide either, and it is difficult to see how the alternatives provided for by the conjunction matter in those circumstances. [49] I am not satisfied that the use of the conjunction in the relevant parts of the pleading gives rise to any prejudice to the defendant, because it has not been demonstrated that the pleading creates uncertainty or is duplicitous. [50] I am fortified in this conclusion by reference to the evidence. This is a relatively simple case. The prosecution alleges that the defendant should have: (a) implemented the safe work method by amending its SWMSs in the way that it did after the incident; (b) trained its workers, being its employees and contract truck drivers, on that safe work method, by reference to the way that it trained all workers on 21 February 2018; (c) supervised the workers, where it was reasonably practicable to do so, to ensure that they were not exposed to a risk of a fall during the loading or unloading of trucks, such as by enforcing the verbal direction; (d) consulted with its contract drivers, such as Mr Edwards, to ensure that the safe work method was implemented and enforced.

[24]

Consideration

I agree with the submission advanced by the respondent that the appellant's submissions in this respect are based on a mischaracterisation of the approach adopted by the primary judge as to issues associated with the loading and unloading of trucks and trailers.
After noting that the primary judge identified the pleaded risk as the risk of workers falling from height whilst loading or unloading (see [145] of Saunders Civilbuild (No 1)), the primary judge approached the risk as the risk of workers falling from a height whilst loading and unloading piles. This is illustrated by the following examples: 1. With respect to particular 17(a), his Honour referred to SWMS and SWP which related to tasks regularly undertaken by the appellant's workers in the yard and on site. The processes undertaken in the yard were primarily loading and those on site unloading (at [165] of Saunders Civilbuild (No 1)). 2. At [167] of Saunders Civilbuild (No 1), the primary judge referred to the pre-incident Pile Driving SWMS and Loading and Unloading Trucks SWMS (and other documents to which it referred at [20] and [24] of his judgment concerning safe work method statements and safe work procedures). His Honour referred in that respect to both the verbal direction and the practice of pre-slinging the load. 3. Again with respect to particular 17(a) (in this case with respect to sub-particular (iii)-(iv)), the primary judge referred to the appellant's adoption of the measures in sub-paragraphs (iii) and (iv) and inferred that it was necessary to do so in contemplation of other work that the appellant undertook to cover off on the possibility that in a particular "loading or unloading" situation access to the back of a truck or trailer might be required. His Honour, in that context, clearly considered both loading and unloading. 4. In dealing with particular 17(b), his Honour referred to the particular alleging an omission by the appellant to have trained its workers on the content of the safe work method or safe work procedure for the loading or unloading of material. At [177] of Saunders Civilbuild (No 1) the primary judge refers to particular 17(b) alleging that the defendant should have trained its workers on the content of the safe work method and safe work procedures for the loading or unloading of material. By nature of his earlier rulings, his Honour must therefore be referring to loading and unloading. 5. When dealing with the same particular his Honour referred to the appellant's workers being trained on the amendments to the SWMS when they were introduced which, as the respondent correctly pointed out included the post incident SWMS of Loading and Unloading trucks. 6. As to the ultimate conclusion regarding particular 17(b), the primary judge concluded that the appellant should have trained it workers on the content of the safe work method or the safe work procedures referred to in particular 17(a) and in doing so referred to the appellant's amended safety documents which included the SWMS Loading and Unloading trucks and the Contractor Induction Package. Both of those documents address the full risk associated with accessing the back of trucks and trailers during both loading and unloading.

[25]

Ground 3 - the learned trial judge erred in law and fact in concluding that the word 'permitted' in paragraph [16] of the charge was not an essential fact that must be established by the prosecution

This ground centred upon the use of the word "permitted" in particular 16 of the charge which, together with particulars 17-20 fell under the heading "particulars of the defendant's failure to comply with the duty under s 19(1) of the Act."
At trial, the appellant submitted that the insertion of the word "permitted" (particular [16] of the charge) should have resulted in the following: 1. An essential fact to be established by the prosecution was "permitting workers to access the trailer during the loading and unloading of piles." 2. The prosecution did not prove that fact to the requisite standard. 3. The failure to prove the fact resulted in the offence not having been made out.
The appellant correctly contended that the primary judge had found the following with respect to those submissions: 1. The appellant's reliance on authorities relating to the meaning of 'permit' in criminal cases was misplaced (at [134]); 2. The relevant permission [paragraph 16 of the charge] was not an essential fact that must be established by the prosecution (at [135]); 3. In construing [16] of the charge in context, it is necessary to have regard to the allegation of the omissions set out in [17] of the [charge]. In doing so, it is apparent that [16] is a factual allegation that a circumstance (accessing the back of the truck) was allowed to occur by the [appellant] because it failed to take one or more of the steps set out in [17] of the [charge]. In other words, the factual scenario was allowed to come into existence as a result of the [appellant's] omission or omissions (at [138]); 4. The appellant's argument, with respect to the use of the word 'permitted' at [16] of the charge, if correct, gives [17] of the [charge] no work to do (at [139]; and (alternatively) 5. Because permission was not an essential legal element of the offence or an essential fact to be established, [16] of the [charge] is surplusage and can be ignored or deleted by amendment' (at [140]).
Had his Honour correctly approached the word 'permitted' in particular 16, it was submitted, as an essential fact, then having regard to the relevant evidence at trial, it was not open to his Honour to find the offence proven beyond reasonable doubt.

[26]

Consideration

In my view, even if particular 16 of the Summons was found to be an essential fact the prosecution had to prove in order to prove the contravention, the appellant has not demonstrated that the respondent failed to the requisite standard to prove the same.
Whilst the appellant contended that the respondent had elected, by particular 16, to plead an act it must prove, rather than prove an omission, and in that context, the respondent must prove what the appellant did, [35] senior counsel for the appellant properly accepted that the word "permitted" does not have a single application and involved a question of fact. [36]
The appellant's submission proceeded upon the basis that the word 'permit' means "intentionally allow", even though permission may be given expressly or inferred from "the circumstances which carry with them a reasonable implication of a discretion or liberty to use." [37]
When seen in the light of the appellant's primary submission, and the challenges to the findings of the primary judge, in substance, the appellant contended that the prosecution has not demonstrated anything more than mere inactivity or a failure to take some step to prevent the performance of work. It was contended that that was not enough to establish permission. [38]
It was from this foundation that the appellant, as earlier mentioned, contended that the respondent had not established on the evidence that the requisite permission for the purposes of particular 16 was given because: 1. There is no "direct" evidence that Mr Edwards or Mr Williams were permitted to get on the load or the trailer; 2. There was no question asked by the respondent of Mr Brown or Mr Williams as to whether they had permitted access to the trailer or the load. Mr Brown did not tell Mr Edwards to climb into the collars on the piles. Nor did Mr Williams.
However, the flaw in the appellant's argument in this respect, even allowing for particular 16 to be an essential fact, was that the respondent did establish, to the requisite standard, the appellant had permitted Mr Edwards to access the trailer of his truck, the frames on the trailer, and the load on the frames during the unloading of the piles from the truck (to paraphrase the words of particular 16).
My reasons for this conclusion correspond with the discussion of the evidence at the outset of this judgment: 1. Mr Edwards was contracted to convey the load of piles to the site of the incident and, in that capacity, as he had done many times before, to assist in the unloading of the piles. 2. Mr Brown became aware of Mr Edwards presence on or about the piles before Mr Edwards had changed the hook on the slings. Mr Brown observed Mr Edwards changing the hooking arrangements on the pre-slung piles, from the top of the load. 3. Notwithstanding that observation, Mr Brown allowed Mr Edwards to continue with the process of re-slinging the piles. At the time, Mr Brown had manoeuvred the excavator above the pile for the purpose of moving the piles that had been slung together. It may be inferred from the combination of these two circumstances that Mr Brown gave liberty to or accepted Mr Edwards would proceed in the process of unloading from the top of the pile. Once this assessment of the evidence is made, then the conclusion is a fortiori, that permission had been given to Mr Edwards to operate in the way that he did on the top of the piles. 4. It is unnecessary in coming to this conclusion to make an evaluation of the "nod" given by Mr Edwards to Mr Brown. However, the nod did not represent mere acquiescence. Mr Brown and Mr Edwards had worked together over a considerable period of time. They plainly had established a working relationship in the unloading of piles. On Mr Brown's evidence, the nod from Mr Edwards was plainly an indication for him to undertake the lift with the excavator. Once this conclusion is reached, then a fortiori permission had been given to Mr Edwards to operate in a manner that he did upon the top of the piles.

[27]

CONCLUSIONS

The appellant has failed to establish any of the grounds of appeal. In the circumstances, I would dismiss the appeal with costs.

[28]

ORDERS

I would propose the following orders: 1. The appeal is dismissed. 2. The parties have liberty to apply to Walton J within 21 days for directions in relation to any proposed appeal against sentence.
McNAUGHTON J: I have had the benefit of reading the draft judgments of Beech-Jones CJ at CL and Walton J.
I agree with their judgments, and with the orders proposed by Walton J.

[29]

Endnotes

(SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605; ("Saunders Civilbuild (No 1)") at [28]; [82].
Ibid at [82].
Ibid at [83].
Ibid at [35]; [91].
Saunders at [93].
Tcpt, 26 July 2023, pp 4-5.
Saunders at [166].
Saunders at [168]- [170].
Tcpt, 26 July 2023 p 7(23).
Saunders at [180].
Saunders at [187].
These authorities concerned respectively the Occupational, Health and Safety Act 1983 (NSW) and the Occupational Health and Safety Act 2000 (NSW), but, in these respects, the Acts are in conformity with the WHS Act.
Further, as to the risk being defined as the possibility of damage, see also Bulga at [123]; Inspector Christensen v Abigroup Contractors Pty Ltd (2013) 238 IR 360; [2013] NSWIRComm 111 at [316]; Haynes v CID Manufacturing Pty Ltd (1994) 60 IR 149 at 157 and Grasso.
Carpal Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610; [2000] NSWIR Comm 71 at [82]; Workcover Authority of New South Wales v ATCO Contracts Pty Ltd (1998) 82 IR 80 at 85.
Saunders Civilbuild (No 1) at [176].
Ibid at [187].
Ibid at [194].
Ibid at [145].
Ibid at [146].
Ibid at [148].
Ibid at [149].
SafeWork NSW, Managing The Risk Of Falls At Workplaces, Code Of Practice (April 2016) as cited in Saunders Civilbuild (No 1) at [152].
Saunders Civilbuild (No 1) at [153].
Ibid at [158].
Ibid at [163].
At [25] of this judgment.
At [90] of this judgment.
At [100] of this judgment.
At [100] of this judgment.
At [106] of this judgment.
At [109] of this judgment.
The authority concerns a prosecution under the Occupational Health and Safety Act 1983 (NSW) and defences available under that Act, but those considerations do not undermine or limit the scope of these observations in the present context.
T114.27-38.

The primary judge dealt with sub-particulars [17(a)(i)] and [17(a)(ii)] together. His Honour noted that these particulars "encapsulated the verbal direction and the practice of pre-slinging loads" [7] which I understand to mean that, at the very least, a "safe work method or safe work procedure" encompassed conveying the direction and placing loads onto trucks in a way that they could be unloaded without needing to climb onto the trailer. His Honour noted that the appellant's relevant SWMS did not contain any reference to either of those methods. His Honour then reasoned: [8] The addition of sub-paragraphs (i) and (ii) [i.e. the direction and the practice of pre-slinging loads] to the Pile Driving SWMS or the Loading and Unloading Trucks SWMS was a simple measure that could have been undertaken prior to the incident. The ease with which those matters were incorporated in the Pile Driving SWMS is demonstrated by what occurred on the afternoon of the incident. Had these measures been included in the Pile Driving SWMS and the workers on site required to sign that SWMS before commencing work, the prohibition against accessing the back of the truck would have been clearly stated and acknowledged by the workers as the way in which the work was to be carried out. In this way the defendant would have taken a reasonably practicable step to convey the verbal direction, which it accepted was necessary to control the risk posed by a fall from height from the back of a truck. Further, Mr Brown's evidence was that part of his role as the defendant's supervisor at the site was to enforce the control measures contained in the Pile Driving SWMS. By contrast, he did not step in to enforce the verbal direction when he saw Mr Edwards climb onto the load. For this additional reason, I am satisfied that the inclusion of subparagraphs (i) and (ii) of particular (a) into a safe work method or safe work procedure, such as the Pile Driving SWMS, would have had a demonstrable impact on safety. The inclusion of sub-paragraphs (i) and (ii) in a SWMS that had to be signed onto was a way of ensuring that the requirements were systematically communicated to the contract drivers. (emphasis added)

Before turning to some further aspects of the factual background, it is convenient to recount various responses to notices issued by Inspector Halcroft pursuant to s 155 of the WHS Act, respectively Notices 7-333707; 7-337873; 7-342610 and 7-339642. These are adequately set out in (Saunders Civilbuild (No 1)) at [73]-[79] as follows: Notice 7-333707 [73] On 13 July 2018 Mr Benson provided information including the following answers to Notice 7-333707 to Inspector Halcroft. Q8 What information, training and instruction did Civilbuild provide to Mr Edwards in relation to the work? A8 Civilbuild provided job specific information and instructions to Edwards Float Hire, including regarding the location and timing of pick-ups and drop-offs, on a job by job basis as and when required. It also instructed Edwards Float Hire to perform the contracted work consistent with the applicable Safe Work Method Statement (SWMS). … Q25 When was Geoffrey Edwards inducted to the SWMS? A25 Geoffrey Edwards performed work subject to the Edwards Float Hire's [sic] SWMS. Q27 Did Civilbuild have a written procedure for unloading materials on site? A27 Yes Q28 What was Civilbuild's policy on climbing onto loads/trailers during unloading operations? A28 Engineered alternatives, such as the use of pre-slung loads, to be used wherever possible so that unloading work could be performed from ground level. Alternatively, fall prevention methods must be used. Q29 How was this communicated to workers, including contractors? A29 Distribution of applicable Civilbuild SWMS (defining tasks, risks and controls, including in relation to working at heights), site inductions and discussions at pre-start meetings. Contractors are required to have in place appropriate SWMS for works they are engaged to perform consistent with their specialist experience and qualifications. Consultation with contractors in relation to the use of engineered alternatives such as pre-slung loads. Q30 How did Civilbuild ensure that contractors adhered to the SWP? A30 Adherence to SWMS is monitored by the safety officer and supervisors (where applicable).

Continuing with Scotting DCJ's judgment with respect to the Notices: Notice 20182707-BH [74] On 3 August 2018 Mr Benson sent an email to Inspector Halcroft in response to Notice 20182707-BH identifying that the Pile Driving SWMS was the SWMS that governed the unloading of materials at the site on 16 February 2018. He stated that in Items 6 and 7, the Pile Driving SWMS incorporated, by reference, the following SWPs: the Manual Handling SWP SWP-01, the Personal Protection SWP, the Operation of Plant and Vehicles SWP, and the Use of Lifting Equipment SWP, referred to in [24] above. He stated that a copy of the Pile Driving SWMS had been produced in response to Notice 7-333707, issued earlier. Mr Benson further stated that the defendant could not locate a copy of the EFH SWMS in its records. Notice 7-337873 [75] On 19 September 2018 Mr Benson provided information including the following answers to Notice 7-337873 to Inspector Halcroft. Q2 Which Safe Work Method Statement was the "applicable" SWMS referred to in your response to question 8 (Notice 7-333707)? A2 Edwards Float Hire's SWMS. Q3 When were Geoffrey Edwards and Stephen Brown inducted to (sic) the applicable SWMS? A3 Neither Geoffrey Edwards nor Stephen Brown were inducted to (sic) the Edwards Float Hire SWMS by Civilbuild. Q4 How did Civilbuild ensure that Edwards Float Hire's SWMS was appropriate? A4 By employing senior employees, previously engaged in the business over a long period prior to Civilbuild's acquisition, who had experience dealing with transport contractors (including Edwards Float Hire), a history of consulting with contractors and knowledge of the applicable SWMS. Q5 How did Civilbuild enforce its policy on climbing onto loads/trailers during unloading operations? A5 Consultation with workers, including contractors. Q6 When did Civilbuild consult with Geoffrey Edwards in relation to the use of engineered alternatives such as pre-slung loads? A6 This information was discussed the day prior to the incident, between Steve Brown and Geoff Edwards. Q7 What records were kept of such consultation/s? Please provide a copy of such records. A7 There are no such records. Q8 Was the "regular training" provided to Geoffrey Edwards (Q 38 in Notice 7-333707)? A8 No. [His Honour did not refer to question 12 or 14. Question 12 asked what specific actions [the appellant] took as part of the consideration of the incident? The answer was, apart from referring to the answer question 44 of Notice 7-333707, that the appellant prepared a Safety Alert to all workers. It was further stated that "enhancements were made to transport and delivery truck driver induction" and that the Safety Department reviewed and pre-approved all SWMS for working at height tasks." Question 14 asked for documents which demonstrated the company had responded in a timely way to the incident to ensure, as far as reasonably practicable, that no person was placed at risk when undertaking the same or similar activity. In answer to that question, the appellant nominated the Safety Alert to all workers and the review of the SWMS]. [76] Mr Benson also provided a copy of what he described as the "signed" EFH SWMS with his response. The version of the EFH SWMS provided had an issue date of 1 November 2015 and it was not signed by any person, including Mr Edwards. Notice 7-342610 [77] On an unknown date Mr Benson provided information including the following answer to Notice 7-342610 to Inspector Halcroft. Q1 How many times did Geoffrey Edwards transport timber piles for Saunders Civilbuild Pty Ltd? Please provide invoices to support your answer. A1 Our records show Edwards Float Hire transported piles for Saunders Civilbuild 4 times since 3 May 2017 18th Dec 2017 from Teralba to Fingal Bay 9th Feb 2018 Central Mangrove to Cessnock 15th Feb 2018 from Redhead to Tomago 16th Feb 2018 Tomago to Shoal Bay (Date of incident) There were also a small number of other occasions on which Edwards Float Hire carried out similar work for the Company. However, there are no invoices or other business records held by the Company to confirm the dates on which that work was performed. [78] On this point, two invoices of EFH were tendered by the prosecutor. Those invoices proved that Mr Edwards performed cartage services for the defendant, in addition to the above dates, on 1, 8, 13 and 20 December 2017 and on 8 February 2018. Notice 7-339642 [79] On 9 October 2018 Mr Benson provided information including the following answers to Notice 7-339642 to Inspector Halcroft. Q1 When was the practice of pre-slinging loads introduced at Saunders Civilbuild? A1 The practice of pre-slinging bundles of piles was introduced in around November 2017. This was a part of the consultative process targeting working at heights operations in the business. … Q3 Why was the procedure changed? A3 The practice was changed to reduce the risk of fall from height. This change was part of the company's commitment to continuous improvement. Q4 How was the amended procedure communicated to all affected workers? Please provide supporting documentation. A4 The new practice was communicated to all affected workers as pre-start discussions and through face to face interactions in the yard. Q5 How many transport companies subcontract to Saunders Civilbuild to deliver plant and materials to construction sites? Q5 5. Q6 Of the above, how many transported packs of piles for Saunders Civilbuild up to and including the date of the incident? Q6 5.

Some intermediate factual conclusions may be made about the work arrangements for the loading and unloading of piles and the incident, at this juncture, (which correspond to uncontested findings by Scotting DCJ) subject to issues raised on appeal as to the relevance of the findings: 1. Save for the contested conversation between Mr Brown and Mr Edwards on 15 February 2018, the change in the work practice of pre-slinging and the verbal direction was not, on the evidence, otherwise communicated to Mr Edwards (or other contract drivers). Whilst the instructions were apparently issued to "employees" (Saunders Civilbuild (No 1)) at [82]), there was not a systematic conveyance of the verbal direction to contract drivers prior to the incident: (Saunders Civilbuild (No 1) at [83]), even though contractors were required to perform work consistent with the applicable SWMS: (Saunders Civilbuild (No 1) at [84]) (in the absence of an applicable SWMS by the contractor dealing with the safe work procedures). 2. The well-established practice by Mr Brown and Mr Edwards was, in fact, to climb on the top of piles whilst unloading. 3. The appellant did not make any amendments to the SWMS or safe working procedures to reflect the verbal direction or pre-slinging before the incident: (Saunders Civilbuild (No 1) at [22]). 4. The applicable SWMS for the site at the time of the incident was the Pile Driving SWMS: (Saunders Civilbuild (No 1) at [21] and [74]). No SWMS was gone through or signed on to at the site of the incident before work commenced. Mr Brown had the Pile Driving SWMS with him at the site (in his vehicle) (Saunders Civilbuild (No 1) at [38]) but it did not contain the equivalent of the verbal direction. No site induction was conducted on that day. 5. Scotting DCJ found that, on the day of the incident, Mr Brown did not say anything to Mr Edwards about him standing on the top of the piles because he thought it was a safe practice: (Saunders Civilbuild (No 1) at [47]). 6. The appellant's practice was to have a SWMS for each site that it worked on, signed by each worker engaged at that site: Saunders Civilbuild (No 1) at [31].

Tucker LJ stated (at 709-710): It is contended by the defendants that it was not reasonably practicable for them to do so because there was nothing to indicate the existence of this latent defect, and that to expect them to prop and/or line every road in every mine would be to impose on them an altogether impossible burden. They concede that if any travelling road is known to be insecure, or if there is reasonable ground to fear insecurity, then they cannot escape the consequences of failure to make it secure, save possibly in very exceptional circumstances. In short, it is not reasonably practicable to prop or line every roadway, including those which are in fact perfectly safe, in case somewhere there may be some unknown and unascertainable defects. On the other hand, counsel for the plaintiff argues that nothing short of some external interference by some unauthorized third person, or some occurrence which could not reasonably be anticipated, can excuse the breach of the absolute duty. He says that matters which are within the control of the mine-owner, such as cost, inconvenience and loss of profits, are irrelevant. Alternatively, he submits that if such matters as cost, labour and materials can be considered, the court can only look at the particular roadway in which the accident happened, and that the defendants have given no evidence on this point sufficient to discharge the onus that lay upon them. I cannot accept the submissions of either side in their entirety. 'The defendants' contention appears to me to leave the miner no better off than he was at common law. In effect, it makes the taking of reasonable care the sole test. On the other hand, though no doubt it is necessary to look primarily at the particular part of the particular mine with which the court is concerned, it is, in my opinion, necessary and proper to view it in relation to the totality of obligations resting on the mine-owner. For example, vesting day having been January 1, 1947, and an accident taking place the following November, due to the insecurity of the sides or roof of a travelling road, it would, I think, be permissible for the National Coal Board to lead evidence that it had a scheme or plan for rendering all such roads secure, that certain areas had priority, and that it was not reasonably practicable for them to have carried out the remedial work at the particular by the time of the accident. Again, they might prove that in some areas no propping or lining was necessary, for some particular reason, or that different methods were required in some localities. Dealing with the particular latent defect which caused this accident - a glassy slant - it might perhaps have been possible to show that they are more common in some formations and areas than others, or that they are non-existent in some places. I know not. But this is the kind of evidence which, in my opinion, would have been relevant.

Asquith LJ agreed with those observations and made the following additional findings as follows (at 712-713): The onus was on the defendants to establish that it was not reasonably practicable in this case for them to have prevented a breach of s 49. The construction placed by Lord Atkin on the words 'reasonably practicable' in Coltness Iron Co. v Sharp seems to me, with respect, right. 'Reasonably practicable' is a narrower term than 'physically possible' and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to-the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident. The questions he has to answer are: (a) What measures are necessary and sufficient to prevent any breach of s 49? (b) Are these measures reasonably practicable? In the particular type of accident caused by a 'glassy slant' it is admittedly impossible before the event to foresee at all, at what place or in what roadway or in what mine, such an accident would occur. The argument that the owners could and should have made secure the particular roadway in which, as things fell out, the glassy slant declared its presence, without having to make secure every other roadway in which it might have done so, assumes that the owners could by some process of divination, have predicted that the accident was likely to occur in the particular roadway in which it did, rather than elsewhere. But an owner who is not gifted with second sight can make no such prediction; and without it, security against this peril can only be secured by extending similar security measures to all roadways. Only so can he prevent breaches of s 49 due to glassy slants. So far, I am inclined to agree with the learned judge. But, like my Lord, I do not think any or any sufficient evidence was adduced as to the relative quantum of risk and sacrifice involved, on the basis either that the mines as a whole, or this particular roadway, should be taken as the unit - a necessary prerequisite to any decision that the defendants have proved the necessary measures impracticable.

The submissions of the appellant challenging the ruling of Scotting DCJ as to Mr Brown's evidence concerning the giving of a verbal direction to Mr Edwards were as follows: 1. Mr Brown's evidence in this respect was clear and unchallenged. He gave evidence that he had expressly communicated the content of the direction to Mr Edwards the day prior to the incident. 2. However, his Honour dismissed this evidence on the basis that "the timing was far too convenient" for his Honour's liking. His Honour's reasoning for rejecting this evidence, beyond its perceived "convenience", was general and limited. His Honour referred to Mr Brown having some interest in giving this evidence as well as the evidence being "imprecise" and not subject to independent corroboration. 3. The primary judge's reasons for rejecting Mr Brown's evidence were insufficient. Mr Brown was a witness who the primary judge on every occasion found to be a reliable witness. A sound basis was not demonstrated as to why, on this occasion, his Honour decided not to accept an otherwise truthful witness. 4. Nextly, the primary judge could not have been satisfied beyond reasonable doubt that the amendments would have had a demonstrable impact on safety and ensured communication of the verbal direction in circumstances where the only evidence available to the primary judge, which was incorrectly rejected, supported the finding that the verbal direction was communicated to Mr Edwards. 5. Mr Brown's evidence was not that he gave the instruction "out of the blue" but that there was a "physical reason which precipitated an explanation of the change in the way that things had been done." Messer's Edwards and Brown had worked together for decades and there was a reason why it was likely that such conversation occurred because there was a difference in what physically had to be done and how it was to be done. 6. The issue regarding Mr Brown's evidence was raised late in the trial by the primary judge. Even at that stage, the respondent accepted that the state of the evidence was that the instruction had been given to Mr Edwards in the course of the loading the night before the incident. 7. The reference by his Honour to "dead men not being able to give an account" should be balanced against the fact that there was practical support as to why the conversation took place and the instruction arising incidentally out of that conversation. 8. His Honour did not mention anything about pre-slinging in the context of him ruling on the acceptance or otherwise of Mr Brown's evidence.

The appellant's reliance upon Baiada either focused upon [15] and [33] of the judgment of the plurality, as follows: [15] All elements of the statutory description of the duty were important. The words "so far as is reasonably practicable" direct attention to the extent of the duty. The words "reasonably practicable" indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment. … [33] As the reasons of the majority in the Court of Appeal reveal by their reference to Baiada checking compliance with directions it gave to DMP and Azzopardi Haulage, the question presented by the statutory duty "so far as is reasonably practicable" to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada's obligation "so far as is reasonably practicable" to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.

The factual background is summarised at [6] and [7] of the judgment in Baiada as follows: [6] Andrea and John Houben were contract growers for Baiada. Baiada arranged for a collection of chickens from the Houbens' farm to take place on the evening of 4 December 2005. Baiada engaged DMP Poultech Pty Ltd (DMP) to do the chicken catching and Azzopardi Haulage Pty Ltd (Azzopardi Haulage) to transport the crates of chickens from the farm to the plant. Azzopardi Haulage had to provide a prime mover and a driver; Baiada provided a trailer loaded with empty crates stacked into a series of steel pallets or "modules". DMP had to provide a forklift truck and driver to unload the modules at the farm, provide chicken catchers to catch the chickens and then use the forklift to load the modules of filled crates onto the trailer for Azzopardi Haulage to take back to the plant. [7] All went well at the Houbens' farm until most of the crates had been filled and most of the modules put back onto the trailer. One of the chicken catchers, Jacob Devent, then asked if he could use the forklift to put some remaining modules onto the trailer. Although unlicensed, Mr Devent had been allowed to drive the forklift under the supervision of the supervisor of the chicken catching crew - Aaron Slocombe - and Mr Devent was permitted to drive the forklift to load the remaining modules. By this stage, the principal of Azzopardi Haulage, Mario Azzopardi, who had driven the prime mover and trailer to the farm, was strapping down the load. He asked Mr Devent to shift some of the modules to even up the load. As Mr Devent was doing this, he found a module he was trying to move was stuck and he asked Mr Azzopardi to give him a hand to get it unstuck. As Mr Devent moved the module, another module fell on and killed Mr Azzopardi. One of the particulars of the charge were directed to what was alleged to be a failure by the appellant to control how the forklift was to be operated at grower farms. The particulars directed attention to whether the employee operating the forklift was properly trained in the absence of a control or elimination of risks associated with the system of unloading and loading live birds for transport at night.

At [36] and [37] of the judgment the plurality stated: [36] All members of the Court of Appeal agreed that the jury should have been instructed to consider the issue of reasonable practicability. And a direction of that kind was necessary only if the issue was a live issue at the trial - an issue which it was necessary for the jury to consider before returning its verdict. The conclusion reached by the majority in the Court of Appeal - that the evidence established beyond reasonable doubt that Baiada's effectively exercising its right to control its subcontractors was "reasonably practicable" - was inconsistent with the conclusion that the issue whether the prosecution had established this element beyond reasonable doubt was one which should have been put to the jury for its decision. No doubt the Court of Appeal could decide whether Baiada had the right to give instructions to its subcontractors. It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions of that kind. But the evidence led at trial did not compel that conclusion. [37] As has been noted, the majority in the Court of Appeal identified four considerations as supporting their conclusion that "[i]t was entirely practicable for [Baiada] to require the contractors to put loading and unloading safety measures in place and to check whether those safety measures were being observed from time to time". It may be doubted that one of those considerations (that the subcontractors had no specialist knowledge that Baiada lacked) bore upon whether it was practicable for Baiada to give instructions to its subcontractors or to check whether its instructions were being observed. And no consideration was given to how or at what cost the process of "checking" compliance with safety instructions could or would be undertaken or to the likelihood of the risk eventuating.

Baiada may be distinguished from the circumstances of this matter in a number of important respects: 1. As is evident from the IMS, the appellant sought to control the work of sub-contractors. This was recognised by the primary judge. The IMS was the management system for worker health and safety applying to all employees and sub-contractors. It made provision for the assessment of risk including hazard identification and for systems to monitor and control the work of the sub-contractors in workplaces operated by the appellant. Particular projects were monitored under the control of the appellant to identify hazards and risks and to prevent workers from becoming ill or sustaining injuries. There were detailed processes of training, site induction and auditing. 2. The SWMS and SWP were an integral part of those systems. Mr Brown had significant obligations under those arrangements to ensure the Work Health & Safety of, inter alia, sub-contractors in accordance with the IMS, SWMS and other instructions including the verbal direction. 3. The appellant actually controlled the work at the project site where the work was being undertaken. In this case, that supervision was undertaken by Mr Brown. Mr Brown's conduct in that respect was the conduct of the appellant: see s 244(1) of the WHS Act. In stark contrast to the questions raised for consideration in [33] of Baiada, the appellant did give safety instructions to sub-contractors; did make arrangements to check the instructions were followed or complied with (albeit ineffectively). 4. The appellant, by its supervisor, was aware that Mr Edwards was not complying with the appellant's safety system, albeit one issued verbally. I agree with the submission of the appellant that Mr Brown was complicit in Mr Edwards disobedience (if Mr Edwards had actually received the verbal direction). Mr Brown saw Mr Edwards in position on the top of the logs or piles where he was not supposed to be, and actually took advice or instructions from him as to the lifting of the piles while he was on them or next to them. No contrary instructions were given by Mr Brown to Mr Edwards. He did not query the practice being adopted by Mr Edwards. 5. This is not a case where the appellant may contend that it had satisfied its obligation by retaining a skilled contractor.

As a starting point, I consider that the primary judge's reasons for reaching those conclusions with respect to these particulars is sound. However, given the arguments developed on appeal, those reasons may be supplemented by the following which also accounts for my analysis above: 1. The starting point is that the appellant, by the IMS, recognised that written safety systems were integral to its safe work methods for all workers, including sub-contractors and were essential to the attainment of a safe and healthy working environment. The systems implemented provided for hazard identification, measurable objectives, health and safety measures and audits. The SWMS and SWP were employed in that system, although in this case, as is evident in this appeal ground, the SWMS was deficient in that it did not provide steps to prevent employees working above the ground and in particular on piles whilst unloading. By the safe work procedures and methods adopted by the appellant both prior to and after the incident, the appellant recognised that the written procedures (with corresponding inductions, training and supervision), were a necessary condition for the maintenance of safety. 2. The senior management of the appellant actually recognised and acknowledged the introduction of the amendments as improving its safe work system. Mr Benson referred to the amendments (together with induction procedures and review of SWMS) as "enhancement." [26] I have earlier dealt with the evidence of Mr Bromilow where he described the changes made and the procedures adopted after the incident as adequate and appropriate. [27] On 20 February 2018, Mr Benson and Mr Stevenson issued the Saunders Safety Alert that had been prepared specifically in relation to the incident and was distributed to all workers. [28] 3. The written procedures of the appellant were adjusted to reflect the measures including the Pile Driving SWMS, the Driver Induction package, [29] the Truck Operation SWMS, [30] and the Loading and Unloading SWMS. [31] All of those changes should have been made prior to the incident. There is no basis for Mr Bromilow to assert that he was directed to vary the Pile Driving SWMS by an inspector on the day. The primary judge did not accept his evidence and there was no cross-examination of the inspectors on that point. 4. The SWMS were introduced as an administrative control as part of the hierarchy of control at the appellant's workplaces. The SWMS identified hazards, the gravity of the risk and controls with respect to specific projects and operations. References in the SWMS (as was done after the accident) to possible hazards, any corresponding adjustment to the risk rating, safety controls and any corresponding change to the residual risk rating were not merely a matter of converting what might have been a verbal direction to something in writing. The change represented a shift in the component of the overall control measures that needed to be correlated with other components of the safety procedure. 5. Thus, a written SWMS dealing with the risks of falls from trucks placed the verbal direction in the context of a detailed written safety procedure which correlated the fall hazard and the risk of death or serious injury associated with the hazard. Those written safety procedures were required to be read, discussed and acknowledged by workers in writing. The documented procedure provided for induction prior to the commencement of work and a written acknowledgement by all of the workers and the relevant supervisor. It was, as the primary judge found, a systematic method of communication. It was clear that the primary judge was alive to these issues and properly understood the question to be determined was whether the steps particularised in particular 17 were reasonably practicable.

That evidence was explained by the appellant as follows: a) The appellant's piling supervisor, Mr Brown had some 30 years' experience working with the appellant and its predecessor company (AB, Tab 9, p 232); b) Mr Brown had worked with Mr Edwards, at the time of the incident, over the course of about 20 years. This involved working with Mr Edwards loading and unloading plant and equipment onto trucks driven by Mr Edwards; c) Mr Brown knew that as part of his role he was Mr Williams' supervisor; d) Mr Brown also knew that Mr Williams was a qualified dogman and that the function he was to perform on the day of the incident related to the unloading of trucks; e) Mr Brown understood that the appellant's verbal direction not to get on the back of trucks applied to contractors' trailers; f) Mr Brown had also provided Mr Williams with training on how to use the appellant's sling system; g) On the morning of the incident, Mr Brown had a verbal pre-start with Mr Williams at the site. Mr Brown explained to Mr Williams the hazards on site and explained to Mr Williams what they were going to do for the day; h) The appellant knew that Mr Brown had a supervisory function in respect to Mr Williams; i) There was no evidence that before the incident, Mr Brown had failed in his duty as supervisor on any occasion; k) Mr Williams understood that Mr Brown was his supervisor when on site; l) Mr Edwards also understood that Mr Brown was his supervisor when on site; m) Mr Williams understood that the point of this system was that loads were to be slung from the ground; n) Mr Williams was also familiar with the use of the appellant's sling system; o) There was no evidence that before the incident, Mr Williams had failed to follow any direction of a supervisor on any occasion; p) Mr Edwards had 40 years' experience driving trucks. This was known to both Mr Brown and Mr Williams; and q) There was no evidence that before incident, Mr Edwards had failed to follow any direction of a supervisor on any occasion.

The appellant then referred to several passages from Mr Brown's evidence, some of which have been set out earlier in this judgment but for convenience and to capture the content the appellants argument, they are set out here. At trial Mr Brown gave the following evidence: Q. Did you work with Mr Edwards on the loading of those materials onto his truck, once the business transferred over to this defendant? A. Yes. Q. Did you work with him on the unloading of his truck at sites where piling was to be done? A. Yes. Q. Can you tell his Honour, in your experience over the time that you worked with Mr Edwards up to the date of this incident, did you routinely assist in the loading and unloading of materials from his truck? A. I helped him unload - loading and unload the truck. Q. Did that include the operation of lifting equipment to lift piles off the truck? A. I - I'd loaded the piles on the truck for - for him, where he wanted them to be. Mr Brown also said: Q. Did you understand before the 15 February, the date on which the load of this load of piles, did you have an understanding as to whether your employer, Saunders Civilbuild, had a safe work practice or procedure which you were required to follow in relation to the loading of piles onto trucks? A. I don't know. Mr Brown then said: Q. Can you tell his Honour when tha- conversation took place? A. It took - the day before the incident we were loading the piles up onto - we were going to load them -p on Mr Edwards truck, and I put some - we slung it up with some string so we could lift it off and explained to him then that we had to do that now because we're not allowed to get up on the back of trucks. … Q. In relation to the conversation that you had with Mr Edwards on 15 February, can you tell his Honour what it was that you actually said to him. Do you have a recollection then? A. I told him that he had to pre-sling them up because you're not allowed to get on the back - they've got the rules that they're not allowed to get on the back of trucks. So, we've got to put these slings on them so we can - we don't have to get onto the trucks. … Q. That's one of the slings that you gave evidence about earlier that was placed on the load before it was loaded on 15 February. A. Yes. ... Q. Mr Brown, so the - one pack was pre-slung at the yard before it was loaded onto the truck, is that right? A. I'm pretty sure two packs were slung, because there's three packs on the truck. Q. So, the last pack would be slung from the ground by throwing the sling over the top of the piles in situ, is that right? A. Yes.

The appellant relied upon the judgment of Button J in Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745 wherein his Honour stated at [36], [54], [64] and [75] as follows: [36] It was said that the test for whether an alleged fact is "essential" is whether a failure by the prosecution to establish that fact would entitle an accused person to an acquittal: R v VHP (Unreported, NSWCCA, 7 July 1997). The point was made that the present case was not one in which requirements of procedural or substantive fairness would restrict the capacity of the Crown to amend the pleaded advantage. For instance, if the complainant failed to "come up to proof" regarding the nature of the alleged advantage, it was submitted that the Crown would not be restricted from amending the indictment to reflect the admissions that had been made by the defendant in his interview with the police. I understood the point to be that the availability, if necessary, of amendment to the prosecution demonstrates that the precise advantage alleged is not an essential fact. … [54] Having said that, it was accepted that there is no touchstone or litmus test to determine what is an element, essential fact, or a mere fact, in order to further determine the degree of specificity required with regard to indictments. It was also submitted that there is a paucity of authority about the question of classification of factual allegations as, on the one hand, mere facts, and, on the other hand, essential facts. … [64] As I have said, the question requiring resolution here is whether the nature of the advantage intended to be obtained is, on the one hand, an element of the offence, or in some other sense a fact essential to proof of the count; or, on the other hand, a "mere" or non-essential fact that need not be proven before a verdict of guilty could be returned, and that is amenable to resolution in proceedings on sentence. … [75] Thirdly, it is true that the elements of an offence are not the only matters that ever need to be proven by the prosecution beyond reasonable doubt. It is well known that, sometimes, factual assertions usually thought of as mere particulars are elevated to become "essential facts". Two often encountered examples spring to mind.

In support of the contention that the allegation in particular 16 was an essential fact the prosecution had to prove in order to prove the contravention, the appellant advanced the following arguments: 1. The most common form of prosecution under the WHS Act alleges an omission by a duty holder. That is, an allegation that a duty holder failed to do certain things in circumstances where there were reasonably practicable measures it should have taken. That is the form of the charge in these proceedings. 2. The omissions in the charge alleged to be the reasonably practicable measures the appellant should have taken in order to discharge its health and safety duty are those set out at paragraph 17(a)-(d) of the Summons. 3. The preceding paragraph [16], under heading, 'Particulars of the defendant's failure to comply with the duty', alleges the appellant permitted workers to access the trailer of the heavy combination vehicle during preparation and unloading of packs of piles. 4. However, the measures in [17], said to make good the alleged contravention of s 19(1), pleaded after [16], that the appellant 'permitted' workers to access the trailer during the unloading of packs' (both under heading 'particulars of the defendant's failure to comply with the duty'), logically places the alleged omissions in [17] as the concomitant of the factual context said to have existed in [16]. 5. Because of the existence of the alleged factual context in [16] (workers having been permitted by the appellant to access the trailer to unload piles), the omissions at [17] were enlivened, resulting in the alleged exposure to workers of a risk of death or serious injury or illness. 6. Prior to any unloading of piles from the trailer by workers, the mere existence of the omissions in the system of work said to exist at [17] could not, of themselves, have exposed workers to a risk of health and safety, because no worker was performing the task of unloading piles (see s 32(c) of the WHS Act). 7. The event that led to enlivening the alleged omissions in [17] was the placement of workers on the trailer unloading piles. How workers accessed the trailer was said to have occurred because the appellant 'permitted' those workers to do so. 8. It was not the case that the prosecution alleged the appellant failed to instruct workers to disembark the trailer after they got on it. Nor was this a case of an allegation of a failure to direct workers not to get up onto the trailer to unload piles. 9. It was the act of permitting workers which was said to have placed workers on the trailer to unload piles which, logically understood, enlivened reliance on a system of work said to contain the omissions pleaded at 17(a)-(d), leading to the allegation that the appellant contravened its duty as a result of those omissions.

Saunders Civilbuild Pty Ltd v SafeWork New South Wales

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